LEGAL CONSEQUENCES OF THE CONSTRUCTION OF
A WALL
IN THE OCCUPIED
Jurisdiction of the Court to give the advisory opinion requested.
Article 65, paragraph 1,
of the Statute -
Article 96, paragraph 1, of the Charter - Power of General Assembly to request advisory
opinions -
Activities of Assembly.
Events leading to the adoption of General Assembly resolution
ES‑10/14 requesting the advisory opinion.
Contention that General Assembly acted ultra vires under the
Charter - Article 12,
paragraph 1, and Article 24 of the Charter - United Nations practice concerning the
interpretation of Article 12, paragraph 1, of Charter - General Assembly did not exceed its competence.
Request for opinion
adopted by the Tenth Emergency Special Session of the General Assembly - Session convened pursuant to resolution
377 A (V) (“Uniting for Peace”) - Conditions set by that resolution - Regularity of procedure followed.
Alleged lack of clarity of the terms of the question - Purportedly abstract nature of the question - Political aspects of the question - Motives said to have inspired the request and
opinion’s possible implications - “Legal”
nature of question unaffected.
Court having jurisdiction to give advisory opinion requested.
* *
Discretionary
power of Court to decide whether it should give an opinion.
Article 65, paragraph 1, of Statute - Relevance of lack of consent of a State
concerned -
Question cannot be regarded only as a bilateral matter between Israel and
Palestine but is directly of concern to the United Nations - Possible effects of opinion on a political,
negotiated solution to the Israeli‑Palestinian conflict - Question representing only one aspect of Israeli‑Palestinian
conflict - Sufficiency of information and evidence
available to Court - Useful
purpose of opinion - Nullus commodum capere potest de sua injuria propria - Opinion to be given to the General
Assembly, not to a specific State or entity.
No “compelling reason” for Court to use its discretionary power not to give an
advisory opinion.
* *
“Legal consequences” of the construction of a wall in the Occupied Palestinian
Territory, including in and around East Jerusalem - Scope of question posed - Request for opinion limited to the legal
consequences of the construction of those parts of the wall situated in
Occupied Palestinian Territory - Use of the term “wall”.
Historical background.
Description of the wall.
* *
Applicable law.
United Nations Charter - General Assembly resolution 2625 (XXV) - Illegality of any territorial acquisition
resulting from the threat or use of force - Right of peoples to self‑determination.
International humanitarian law - Regulations annexed to the Fourth Hague Convention of
1907 - Fourth Geneva
Convention of 1949 -
Applicability of Fourth Geneva Convention in the Occupied Palestinian
Territory -
Human rights law -
International Covenant on Civil and Political Rights - International Covenant on Economic, Social
and Cultural Rights -
Convention on the Rights of the Child - Relationship between international humanitarian law
and human rights law -
Applicability of human rights instruments outside national territory - Applicability of those instruments in the
Occupied Palestinian Territory.
* *
Settlements established by
Israel in breach of international law in the Occupied Palestinian
Territory -
Construction of the wall and its associated régime
create a “fait accompli” on the ground that could well become permanent - Risk of situation tantamount to de facto annexation - Construction of the wall severely impedes
the exercise by the Palestinian people of its right to self‑determination
and is therefore a breach of Israel’s obligation to respect that right.
Applicable provisions of international humanitarian law and human rights
instruments relevant to the present case - Destruction and requisition of properties - Restrictions on freedom of movement of
inhabitants of the Occupied Palestinian Territory - Impediments to the exercise by those
concerned of the right to work, to health, to education and to an adequate
standard of living -
Demographic changes in the Occupied Palestinian Territory - Provisions of international humanitarian
law enabling account to be taken of military exigencies - Clauses in human rights instruments
qualifying rights guaranteed or providing for derogation - Construction of the wall and its
associated régime cannot be justified by military
exigencies or by the requirements of national security or public order - Breach by Israel of various of its obligations under the applicable
provisions of international humanitarian law and human rights instruments.
Self-defence -
Article 51 of the Charter - Attacks against Israel not imputable to a foreign State - Threat invoked to justify the construction
of the wall originating within a territory over which Israel exercises
control - Article 51
not relevant in the present case.
State of necessity - Customary international law - Conditions - Construction of the wall not the only
means to safeguard
Construction of the wall and its associated régime
are contrary to international law.
* *
Legal consequences of the violation by
Israel’s international responsibility - Israel obliged to comply with the international
obligations it has breached by the construction of the wall - Israel obliged to put an end to the
violation of its international obligations - Obligation to cease forthwith the works of
construction of the wall, to dismantle it forthwith and to repeal or render
ineffective forthwith the legislative and regulatory acts relating to its
construction, save where relevant for compliance by Israel with its obligation
to make reparation for the damage caused - Israel obliged to make reparation for the damage
caused to all natural or legal persons affected by construction of the wall.
Legal consequences for
States other than Israel - Erga omnes
character of certain obligations violated by Israel - Obligation for all States not to recognize the illegal
situation resulting from construction of the wall and not to render aid or
assistance in maintaining the situation created by such construction - Obligation for all States, while
respecting the Charter and international law, to see to it that any impediment,
resulting from the construction of the wall, to the exercise by the Palestinian
people of its right to self‑determination is brought to an end - Obligation for all States parties to
the Fourth Geneva Convention, while respecting the Charter and international
law, to ensure compliance by Israel with international humanitarian law
as embodied in that Convention - Need for the United Nations, and especially the
General Assembly and the Security Council, to consider what further action is
required to bring to an end the illegal situation resulting from the
construction of the wall and its associated régime,
taking due account of the Advisory Opinion.
* *
Construction of the wall must be placed in a more general context - Obligation of Israel and Palestine
scrupulously to observe international humanitarian law - Implementation in good faith of all
relevant Security Council resolutions, in particular
resolutions 242 (1967) and 338 (1973) - “Roadmap” - Need for efforts to be encouraged with a
view to achieving as soon as possible, on the basis of international law, a negotiated solution to the
outstanding problems and the establishment of a Palestinian State, with peace
and security for all in the region.
ADVISORY OPINION
Present: President Shi; Vice-President Ranjeva; Judges Guillaume, Koroma, Vereshchetin, Higgins,
Parra‑Aranguren, Kooijmans, Rezek, Al‑Khasawneh, Buergenthal,
Elaraby, Owada, Simma, Tomka; Registrar Couvreur.
On the legal consequences of the construction of a wall in the
The Court,
Composed as above,
Gives the following Advisory Opinion:
1. The question on which the
advisory opinion of the Court has been requested is set forth in resolution ES‑10/14
adopted by the General Assembly of the United Nations (hereinafter the “General
Assembly”) on
“The General Assembly,
Reaffirming its resolution ES‑10/13 of
Guided by the principles of the Charter of the United Nations,
Aware of the established principle of international law on the
inadmissibility of the acquisition of territory by force,
Aware also that developing friendly relations among nations based on
respect for the principle of equal rights and self‑determination of
peoples is among the purposes and principles of the Charter of the United
Nations,
Recalling relevant General Assembly resolutions, including
resolution 181 (II) of
Recalling also the resolutions of the tenth emergency special session of
the General Assembly,
Recalling further relevant Security Council resolutions, including
resolutions 242 (1967) of 22 November 1967, 338 (1973)
of 22 October 1973, 267 (1969) of 3 July 1969,
298 (1971) of 25 September 1971, 446 (1979) of
22 March 1979, 452 (1979) of 20 July 1979,
465 (1980) of 1 March 1980, 476 (1980) of
30 June 1980, 478 (1980) of 20 August 1980,
904 (1994) of 18 March 1994, 1073 (1996) of
28 September 1996, 1397 (2002) of 12 March 2002 and
1515 (2003) of 19 November 2003,
Reaffirming the applicability of the Fourth Geneva Convention1
as well as Additional Protocol I to the Geneva Conventions2 to
the
Recalling the Regulations annexed to the Hague Convention Respecting the
Laws and Customs of War on Land of 19073,
Welcoming the convening of the Conference of High
Contracting Parties to the Fourth Geneva Convention on measures to enforce the
Convention in the
Expressing its support for the declaration adopted by the reconvened
Conference of High Contracting Parties at
Recalling in particular relevant United Nations resolutions affirming
that Israeli settlements in the Occupied Palestinian Territory, including East
Jerusalem, are illegal and an obstacle to peace and to economic and social
development as well as those demanding the complete cessation of settlement
activities,
Recalling relevant United Nations resolutions affirming that actions taken
by Israel, the occupying Power, to change the status and demographic
composition of Occupied East Jerusalem have no legal validity and are null and
void,
Noting the agreements reached between the Government of Israel and the
Palestine Liberation Organization in the context of the
Gravely concerned at the commencement and continuation of construction
by Israel, the occupying Power, of a wall in the Occupied Palestinian
Territory, including in and around East Jerusalem, which is in departure from
the Armistice Line of 1949 (Green Line) and which has involved the confiscation
and destruction of Palestinian land and resources, the disruption of the lives
of thousands of protected civilians and the de facto annexation of large
areas of territory, and underlining the unanimous opposition by the
international community to the construction of that wall,
Gravely concerned also at the even more devastating impact of the
projected parts of the wall on the Palestinian civilian population and on the
prospects for solving the Palestinian‑Israeli conflict and establishing
peace in the region,
Welcoming the report of
Affirming the necessity of ending the conflict on the basis of the two‑State
solution of Israel and Palestine living side by side in peace and security
based on the Armistice Line of 1949, in accordance with relevant Security
Council and General Assembly resolutions,
Having received with appreciation the report of the Secretary‑General,
submitted in accordance with resolution ES‑10/135,
Bearing in mind that the passage of time further compounds
the difficulties on the ground, as Israel, the occupying Power, continues to
refuse to comply with international law vis‑à‑vis its construction
of the above‑mentioned wall, with all its detrimental implications and
consequences,
Decides, in accordance with Article 96 of the Charter of the United
Nations, to request the International Court of Justice, pursuant to
Article 65 of the Statute of the Court, to urgently render an advisory
opinion on the following question:
What are the legal consequences arising from the construction of the wall being
built by Israel, the occupying Power, in the Occupied Palestinian Territory,
including in and around East Jerusalem, as described in the report of the
Secretary‑General, considering the rules and principles of international
law, including the Fourth Geneva Convention of 1949, and relevant Security
Council and General Assembly resolutions?
_______________
1United Nations, Treaty Series, Vol.
75, No. 973.
2Ibid., Vol. 1125, No. 17512.
3See Carnegie Endowment
for International Peace,
4E/CN.4/2004/6.
5A/ES‑10/248.”
Also enclosed with the letter were the certified English and French
texts of the report of the Secretary‑General dated
2. By letters
dated
3. By a letter
dated
4. By an Order
of 19 December 2003, the Court decided that the United Nations and
its Member States were likely, in accordance with Article 66,
paragraph 2, of the Statute, to be able to furnish information on all
aspects raised by the question submitted to the Court for an advisory opinion
and fixed 30 January 2004 as the time‑limit within which
written statements might be submitted to it on the question in accordance with
Article 66, paragraph 4, of the Statute. By the same Order, the
Court further decided that, in the light of resolution ES‑10/14 and
the report of the Secretary‑General transmitted with the request, and
taking into account the fact that the General
Assembly had granted
5. By the
aforesaid Order, the Court also decided, in accordance with Article 105,
paragraph 4, of the Rules of Court, to hold public hearings during which
oral statements and comments might be presented to it by the United Nations and
its Member States, regardless of whether or not they had submitted written
statements, and fixed 23 February 2004 as the date for the opening of
the said hearings. By the same Order, the Court decided that, for the
reasons set out above (see paragraph 4),
6. Ruling on
requests submitted subsequently by the League of Arab States and the
Organization of the Islamic Conference, the Court decided, in accordance with
Article 66 of its Statute, that those two international organizations were
likely to be able to furnish information on the question submitted to the
Court, and that consequently they might for that purpose submit written
statements within the time‑limit fixed by the Court in its Order of
19 December 2003 and take part in the hearings.
7. Pursuant to
Article 65, paragraph 2, of the Statute, the Secretary‑General
of the United Nations communicated to the Court a dossier of documents likely
to throw light upon the question.
8. By a reasoned
Order of 30 January 2004 regarding its composition in the case, the
Court decided that the matters brought to its attention by the Government of
Israel in a letter of 31 December 2003, and in a confidential letter
of 15 January 2004 addressed to the President pursuant to
Article 34, paragraph 2, of the Rules of Court, were not such as to
preclude Judge Elaraby from sitting in the case.
9. Within the
time‑limit fixed by the Court for that purpose, written statements were
filed by, in order of their receipt: Guinea, Saudi Arabia, League of Arab
States, Egypt, Cameroon, Russian Federation, Australia, Palestine, United
Nations, Jordan, Kuwait, Lebanon, Canada, Syria, Switzerland, Israel, Yemen,
United States of America, Morocco, Indonesia, Organization of the Islamic
Conference, France, Italy, Sudan, South Africa, Germany, Japan, Norway, United
Kingdom, Pakistan, Czech Republic, Greece, Ireland on its own behalf, Ireland
on behalf of the European Union, Cyprus, Brazil, Namibia, Malta, Malaysia, Netherlands,
Cuba, Sweden, Spain, Belgium, Palau, Federated States of Micronesia, Marshall
Islands, Senegal, Democratic People’s Republic of Korea. Upon receipt of
those statements, the Registrar transmitted copies thereof to the United
Nations and its
10. Various communications
were addressed to these latter by the Registry, concerning in particular the
measures taken for the organization of the oral proceedings. By
communications of
11. Pursuant to
Article 106 of the Rules of Court, the Court decided to make the written
statements accessible to the public, with effect from the opening of the oral
proceedings.
12. In the
course of hearings held from 23 to
For
Ms Stephanie Koury, Member, Negotiations Support
Unit, Counsel,
Mr. James Crawford, S.C., Whewell Professor of
International Law, University of Cambridge, Member of the Institute of
International Law, Counsel and Advocate,
Mr. Georges Abi‑Saab, Professor of
International Law, Graduate Institute of International Studies, Geneva, Member
of the Institute of International Law, Counsel and Advocate,
Mr. Vaughan Lowe, Chichele Professor of International
Law,
Mr. Jean Salmon, Professor Emeritus of International Law, Université
libre de Bruxelles, Member
of the
For the
Judge M. R. W. Madlanga, S.C.;
For the People’s
Democratic
Mr. Ahmed Laraba, Professor of International Law;
For the Kingdom of Saudi Arabia: H.E. Mr. Fawzi
A. Shobokshi, Ambassador and Permanent
Representative of the Kingdom of Saudi Arabia to the United Nations in New
York, Head of Delegation;
For the People’s Republic
H.E. Mr. Liaquat Ali Choudhury,
Ambassador of the
of
For
For the
For the
For the Hashemite Kingdom
H.R.H. Ambassador Zeid Ra’ad
Zeid Al-Hussein,
of Jordan:
Permanent Representative of the Hashemite Kingdom of
Jordan to the
United Nations, New York, Head of
Delegation,
Sir Arthur Watts, K.C.M.G., Q.C., Senior Legal Adviser to the Government of the
For the
For
For the
For the Republic of the
For the League of Arab States:
Mr. Michael Bothe, Professor of Law, Head of the Legal Team;
For the Organization of the
H.E. Mr. Abdelouahed Belkeziz,
Secretary General of the
Islamic Conference:
Organization of the Islamic Conference,
Ms Monique Chemillier‑Gendreau, Professor of
Public Law,
University of
*
* *
13. When seised of a request for an advisory opinion, the Court must
first consider whether it has jurisdiction to give the opinion requested and
whether, should the answer be in the affirmative, there is any reason why it
should decline to exercise any such jurisdiction (see Legality of the Threat
or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I),
p. 232, para. 10).
* *
14. The Court
will thus first address the question whether it possesses jurisdiction to give
the advisory opinion requested by the General Assembly on
“It is . . . a precondition of the
Court’s competence that the advisory opinion be requested by an organ duly
authorized to seek it under the Charter, that it be requested on a legal
question, and that, except in the case of the General Assembly or the Security
Council, that question should be one arising within the scope of the activities
of the requesting organ.” (Application for Review of
Judgement No. 273 of the United Nations Administrative Tribunal, Advisory
Opinion, I.C.J. Reports 1982, pp. 333‑334, para. 21.)
15. It is for
the Court to satisfy itself that the request for an advisory opinion comes from
an organ or agency having competence to make it. In the present instance,
the Court notes that the General Assembly, which seeks the advisory opinion, is
authorized to do so by Article 96, paragraph 1, of the Charter, which
provides: “The General Assembly or the Security Council may request the
International Court of Justice to give an advisory opinion on any legal
question.”
16. Although the
above‑mentioned provision states that the General Assembly may seek an
advisory opinion “on any legal question”, the Court has sometimes in the past
given certain indications as to the relationship between the question the
subject of a request for an advisory opinion and the activities of the General
Assembly (Interpretation of Peace Treaties with Bulgaria, Hungary and
Romania, I.C.J. Reports 1950, p. 70; Legality of the Threat or Use
of Nuclear Weapons, I.C.J. Reports 1996 (I), pp. 232 and 233, paras. 11 and 12).
17. The Court
will so proceed in the present case. The Court would observe that Article 10
of the Charter has conferred upon the General Assembly a competence relating to
“any questions or any matters” within the scope of the Charter, and that
Article 11, paragraph 2, has specifically provided it with competence
on “questions relating to the maintenance of international peace and security
brought before it by any Member of the United Nations . . .”
and to make recommendations under certain conditions fixed by those
Articles. As will be explained below, the question of the construction of
the wall in the
the General Assembly by a number of Member States in the context of the
Tenth Emergency Special Session of the Assembly, convened to deal with what the
Assembly, in its resolution ES‑10/2 of
*
18. Before
further examining the problems of jurisdiction that have been raised in the
present proceedings, the Court considers it necessary to describe the events
that led to the adoption of resolution ES‑10/14, by which the
General Assembly requested an advisory opinion on the legal consequences of the
construction of the wall in the Occupied Palestinian Territory.
19. The Tenth
Emergency Special Session of the General Assembly, at which that resolution was
adopted, was first convened following the rejection by the Security Council, on
7 March and 21 March 1997, as a result of negative votes by a
permanent member, of two draft resolutions concerning certain Israeli
settlements in the Occupied Palestinian Territory (see, respectively,
S/1997/199 and S/PV.3747, and S/1997/241 and S/PV.3756). By a letter of
31 March 1997, the Chairman of the Arab Group then requested “that an
emergency special session of the General Assembly be convened pursuant to
resolution 377 A (V) entitled ‘Uniting for Peace’” with a view
to discussing “Illegal Israeli actions in occupied East Jerusalem and the rest
of the Occupied Palestinian Territory” (letter dated 31 March 1997
from the Permanent Representative of Qatar to the United Nations addressed to
the Secretary‑General, A/ES‑10/1, 22 April 1997,
Annex). The majority of Members of the United Nations having concurred in
this request, the first meeting of the Tenth Emergency Special Session of the
General Assembly took place on
“the repeated violation by Israel, the occupying
Power, of international law and its failure to comply with relevant Security
Council and General Assembly resolutions and the agreements reached between the
parties undermine the Middle East peace process and constitute a threat to
international peace and security”,
and condemned the “illegal Israeli actions” in
occupied
20. By a letter dated
9 October 2003, the Chairman of the Arab Group, on behalf of the
States Members of the League of Arab States, requested an immediate meeting of
the Security Council to consider the “grave and ongoing Israeli violations of
international law, including international humanitarian law, and to take the
necessary measures in this regard” (letter of 9 October 2003 from the
Permanent Representative of the Syrian Arab Republic to the United Nations to
the President of the Security Council, S/2003/973,
9 October 2003). This letter was accompanied by a draft
resolution for consideration by the Council, which condemned as illegal the
construction by
On 15 October 2003, the Chairman of the Arab Group, on behalf of the
States Members of the League of Arab States, requested the resumption of the
Tenth Emergency Special Session of the General Assembly to consider the item of
“Illegal Israeli actions in Occupied East Jerusalem and the rest of the
Occupied Palestinian Territory” (A/ES‑10/242); this request was
supported by the Non-Aligned Movement (A/ES‑10/243) and the Organization
of the Islamic Conference Group at the United Nations (A/ES‑10/244).
The Tenth Emergency Special Session resumed its work on
21. On
27 October 2003, the General Assembly adopted resolution ES‑10/13,
by which it demanded that “Israel stop and reverse the construction of the wall
in the Occupied Palestinian Territory, including in and around East Jerusalem,
which is in departure of the Armistice Line of 1949 and is in contradiction to
relevant provisions of international law” (para. 1).
In paragraph 3, the Assembly requested the Secretary‑General “to
report on compliance with the . . .
resolution periodically, with the first report on compliance with paragraph 1
[of that resolution] to be submitted within one
month . . .”. The Tenth Emergency Special Session was
temporarily adjourned and, on 24 November 2003, the report of the
Secretary‑General prepared pursuant to General Assembly
resolution ES-10/13 (hereinafter the “report of the Secretary‑General”)
was issued (A/ES‑10/248).
22. Meanwhile,
on
“Call[ed] on the parties to fulfil their obligations under the Roadmap
in cooperation with the Quartet and to achieve the vision of two States living
side by side in peace and security.”
Neither the “Roadmap” nor
resolution 1515 (2003) contained any specific provision concerning
the construction of the wall, which was not discussed by the Security Council
in this context.
23. Nineteen
days later, on 8 December 2003, the Tenth Emergency Special Session
of the General Assembly again resumed its work, following a new request by the
Chairman of the Arab Group, on behalf of the States Members of the League of
Arab States, and pursuant to resolution ES‑10/13 (letter dated
1 December 2003 to the President of the General Assembly from the
Chargé d’affaires a.i. of
the Permanent Mission of Kuwait to the United Nations, A/ES‑10/249,
2 December 2003). It was during the meeting convened on that
day that resolution ES‑10/14 requesting the present Advisory Opinion
was adopted.
*
24. Having thus
recalled the sequence of events that led to the adoption of resolution ES‑10/14,
the Court will now turn to the questions of jurisdiction that have been raised
in the present proceedings. First,
25. The Court has already indicated that
the subject of the present request for an advisory opinion falls within the
competence of the General Assembly under the Charter (see paragraphs 15‑17
above). However, Article 12, paragraph 1, of the Charter
provides that:
“While the Security Council is exercising in respect of any dispute or
situation the functions assigned to it in the present Charter, the General
Assembly shall not make any recommendation with regard to that dispute or
situation unless the Security Council so requests.”
A request for an advisory opinion is not in
itself a “recommendation” by the General Assembly “with regard to [a] dispute
or situation”. It has however been argued in
this case that the adoption by the General Assembly of resolution ES-10/14
was ultra vires as not in accordance with
Article 12. The Court thus considers that it is appropriate for it
to examine the significance of that Article, having regard to the relevant
texts and the practice of the United Nations.
26. Under
Article 24 of the Charter the Security Council has “primary responsibility
for the maintenance of international peace and security”.
In that regard it can impose on States “an explicit obligation of compliance if
for example it issues an order or command . . . under
Chapter VII” and can, to that end, “require enforcement by coercive
action” (Certain Expenses of
the United Nations (Article 17, paragraph 2, of the
Charter), Advisory Opinion of
27. As regards
the practice of the United Nations, both the General Assembly and the Security
Council initially interpreted and applied Article 12 to the effect that the
Assembly could not make a recommendation on a question concerning the
maintenance of international peace and security while the matter remained on
the Council’s agenda. Thus the Assembly during its fourth session refused
to recommend certain measures on the question of
However, this interpretation of Article 12 has evolved subsequently.
Thus the General Assembly deemed itself entitled in 1961 to adopt
recommendations in the matter of the Congo (resolutions 1955 (XV) and
1600 (XVI)) and in 1963 in respect of the Portuguese colonies (resolution 1913 (XVIII))
while those cases still appeared on the Council’s agenda, without the Council
having adopted any recent resolution concerning them. In response to a
question posed by Peru during the Twenty‑third session of the General
Assembly, the Legal Counsel of the United Nations confirmed that the Assembly
interpreted the words “is exercising the functions” in Article 12 of the
Charter as meaning “is exercising the functions at this moment” (Twenty‑third
General Assembly, Third Committee, 1637th meeting, A/C.3/SR.1637, para. 9). Indeed, the Court notes that there has
been an increasing tendency over time for the General Assembly and the Security
Council to deal in parallel with the same matter concerning the maintenance of
international peace and security (see, for example, the matters involving
28. The Court considers that
the accepted practice of the General Assembly, as it has evolved, is consistent
with Article 12, paragraph 1, of the Charter.
The Court is accordingly of the view that the General Assembly, in adopting
resolution ES‑10/14, seeking an advisory opinion from the Court, did
not contravene the provisions of Article 12, paragraph 1, of the Charter.
The Court concludes that by submitting that request the General Assembly did
not exceed its competence.
29. It has
however been contended before the Court that the present request for an
advisory opinion did not fulfil the essential conditions set by resolution
377 A (V), under which the Tenth Emergency Special Session was
convened and has continued to act. In this regard, it has been said,
first, that “The Security Council was never seised of
a draft resolution proposing that the Council itself should request an advisory
opinion from the Court on the matters now in contention”, and, that specific
issue having thus never been brought before the Council, the General Assembly
could not rely on any inaction by the Council to make such a request.
Secondly, it has been claimed that, in adopting
resolution 1515 (2003), which endorsed the “Roadmap”, before the
adoption by the General Assembly of resolution ES‑10/14, the
Security Council continued to exercise its responsibility for the maintenance
of international peace and security and that, as a result, the General Assembly
was not entitled to act in its place. The validity of the procedure
followed by the Tenth Emergency Special Session, especially the Session’s
“rolling character” and the fact that its meeting was convened to deliberate on
the request for the advisory opinion at the same time as the General Assembly
was meeting in regular session, has also been questioned.
30. The Court
would recall that resolution 377 A (V) states that:
“if the Security Council, because of lack of unanimity
of the permanent members, fails to exercise its primary responsibility for the
maintenance of international peace and security in any case where there appears
to be a threat to the peace, breach of the peace, or act of aggression, the
General Assembly shall consider the matter immediately with a view to making
appropriate recommendations to Members for collective measures . . .”
The procedure provided for by that resolution
is premised on two conditions, namely that the Council has failed to exercise
its primary responsibility for the maintenance of international peace and
security as a result of a negative vote of one or more permanent members, and
that the situation is one in which there appears to be a threat to the peace,
breach of the peace, or act of aggression. The Court must accordingly
ascertain whether these conditions were fulfilled as regards the convening of
the Tenth Emergency Special Session of the General Assembly, in particular at
the time when the Assembly decided to request an advisory opinion from the
Court.
31. In the light
of the sequence of events described in paragraphs 18 to 23 above, the
Court observes that, at the time when the Tenth Emergency Special Session was
convened in 1997, the Council had been unable to take a decision on the case of
certain Israeli settlements in the
Occupied
The Court further notes that, on 20 October 2003, the Tenth Emergency
Special Session of the General Assembly was reconvened on the same basis as in
1997 (see the statements by the representatives of Palestine and Israel, A/ES‑10/PV.21,
pp. 2 and 5), after the rejection by the Security Council, on
14 October 2003, again as a result of the negative vote of a
permanent member, of a draft resolution concerning the construction by Israel
of the wall in the Occupied Palestinian Territory. The Court considers
that the Security Council again failed to act as contemplated in resolution
377 A (V). It does not appear to the Court that the situation
in this regard changed between 20 October 2003 and
8 December 2003, since the Council neither discussed the construction
of the wall nor adopted any resolution in that connection. Thus, the
Court is of the view that, up to
32. The Court
would also emphasize that, in the course of this Emergency Special Session, the
General Assembly could adopt any resolution falling within the subject-matter
for which the Session had been convened, and otherwise within its powers,
including a resolution seeking the Court’s opinion. It is irrelevant in
that regard that no proposal had been made to the Security Council to request
such an opinion.
33. Turning now
to alleged further procedural irregularities of the Tenth Emergency Special Session,
the Court does not consider that the “rolling” character of that Session,
namely the fact of its having been convened in April 1997 and reconvened
11 times since then, has any relevance with regard to the validity of the
request by the General Assembly. The Court observes in that regard that
the Seventh Emergency Special Session of the General Assembly, having been
convened on 22 July 1980, was subsequently reconvened four times (on
20 April 1982, 25 June 1982, 16 August 1982 and
24 September 1982), and that the validity of resolutions or decisions
of the Assembly adopted under such circumstances was never disputed. Nor
has the validity of any previous resolutions adopted during the Tenth Emergency
Special Session been challenged.
34. The Court
also notes the contention by
35. Finally, the Tenth
Emergency Special Session appears to have been convened in accordance with
Rule 9 (b) of the Rules of Procedure of the General Assembly,
and the relevant meetings have been convened in pursuance of the applicable
rules. As the Court stated in its Advisory Opinion of
21 June 1971 concerning the Legal Consequences for States of the
Continued Presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (1970), a “resolution of a
properly constituted organ of the United Nations which is passed in accordance
with that organ’s rules of procedure, and is declared by its President to have
been so passed, must be presumed to have been validly adopted” (I.C.J.
Reports 1971, p. 22, para. 20).
In view of the foregoing, the Court cannot see any reason why that presumption
is to be rebutted in the present case.
*
36. The Court
now turns to a further issue related to jurisdiction in the present
proceedings, namely the contention that the request for an advisory opinion by
the General Assembly is not on a “legal question” within the meaning of
Article 96, paragraph 1, of the Charter and Article 65,
paragraph 1, of the Statute of the Court. It has been contended in
this regard that, for a question to constitute a “legal question” for the
purposes of these two provisions, it must be reasonably specific, since
otherwise it would not be amenable to a response by the Court. With
regard to the request made in the present advisory proceedings, it has been
argued that it is not possible to determine with reasonable certainty the legal
meaning of the question asked of the Court for two reasons.
First, it has been argued that the question regarding the “legal consequences”
of the construction of the wall only allows for two possible interpretations,
each of which would lead to a course of action that is precluded for the
Court. The question asked could first be interpreted as a request for the
Court to find that the construction of the wall is illegal, and then to give
its opinion on the legal consequences of that illegality. In this case,
it has been contended, the Court should decline to respond to the question
asked for a variety of reasons, some of which pertain to jurisdiction and
others rather to the issue of propriety. As regards jurisdiction, it is
said that, if the General Assembly had wished to obtain the view of the Court
on the highly complex and sensitive question of the legality of the
construction of the wall, it should have expressly sought an opinion to that
effect (cf. Exchange of Greek and Turkish Populations, Advisory Opinion,
1925, P.C.I.J., Series B, No. 10, p. 17). A second
possible interpretation of the request, it is said, is that the Court should
assume that the construction of the wall is illegal, and then give its opinion
on the legal consequences of that assumed illegality. It has been
contended that the Court should also decline to respond to the question on this
hypothesis, since the request would then be based on a questionable assumption
and since, in any event, it would be impossible to rule on the legal
consequences of illegality without specifying the nature of that illegality.
Secondly, it has been contended that the question asked of the Court is not of
a “legal” character because of its imprecision and abstract nature. In
particular, it has been argued in this regard that the question fails to
specify whether the Court is being asked to address legal
consequences for “the General Assembly or
some other organ of the United Nations”, “Member States of the United Nations”,
“Israel”, “Palestine” or “some combination of the above, or some different
entity”.
37. As regards
the alleged lack of clarity of the terms of the General Assembly’s request and
its effect on the “legal nature” of the question referred to the Court, the
Court observes that this question is directed to the legal consequences arising
from a given factual situation considering the rules and principles of
international law, including the Geneva Convention relative to the Protection
of Civilian Persons in Time of War of 12 August 1949 (hereinafter the
“Fourth Geneva Convention”) and relevant Security Council and General Assembly
resolutions. The question submitted by the General Assembly has thus, to
use the Court’s phrase in its Advisory Opinion on Western Sahara, “been
framed in terms of law and raise[s] problems of international law”; it is by its very nature susceptible of a reply based
on law; indeed it is scarcely susceptible of a reply otherwise than on
the basis of law. In the view of the Court, it is indeed a question of a
legal character (see
38. The Court
would point out that lack of clarity in the drafting of a question does not
deprive the Court of jurisdiction. Rather, such uncertainty will require
clarification in interpretation, and such necessary clarifications of interpretation
have frequently been given by the Court.
In the past, both the Permanent Court and the present Court have observed in
some cases that the wording of a request for an advisory opinion did not
accurately state the question on which the Court’s opinion was being sought (Interpretation
of the Greco‑Turkish Agreement of 1 December 1926 (Final
Protocol, Article IV), Advisory Opinion, 1928, P.C.I.J., Series B,
No. 16 (I), pp. 14‑16), or did not correspond to the
“true legal question” under consideration (Interpretation of the Agreement
of 25 March 1951 between the WHO and Egypt, Advisory Opinion, I.C.J.
Reports 1980, pp. 87‑89, paras. 34‑36).
The Court noted in one case that “the question put to the Court is, on the face
of it, at once infelicitously expressed and vague” (Application for Review
of Judgement No. 273 of the United Nations Administrative Tribunal,
Advisory Opinion, I.C.J. Reports 1982, p. 348, para. 46).
Consequently, the Court has often been required to broaden, interpret and even
reformulate the questions put (see the three Opinions cited above; see also Jaworzina,
Advisory Opinion, 1923, P.C.I.J., Series B, No. 8; Admissibility
of Hearings of Petitioners by the Committee on South West Africa, Advisory
Opinion, I.C.J. Reports 1956, p. 25; Certain Expenses of the
United Nations (Article 17, paragraph 2, of the Charter), Advisory
Opinion, I.C.J. Reports 1962, pp. 157‑162).
In the present instance, the Court will only have to do what it has often done
in the past, namely “identify the existing principles and rules, interpret them
and apply them . . ., thus offering a
reply to the question posed based on law” (Legality of the Threat or Use of
Nuclear Weapons, I.C.J. Reports 1996 (I), p. 234, para. 13).
39. In the present instance,
if the General Assembly requests the Court to state the “legal consequences”
arising from the construction of the wall, the use of these terms necessarily
encompasses an assessment of whether that construction is or is not in breach
of certain rules and principles of international law. Thus, the Court is
first called upon to determine whether such rules and principles have been and
are still being breached by the construction of the wall along the planned
route.
40. The Court
does not consider that what is contended to be the abstract nature of the
question posed to it raises an issue of jurisdiction. Even when the
matter was raised as an issue of propriety rather than one of jurisdiction, in
the case concerning the Legality of the Threat or Use of Nuclear Weapons,
the Court took the position that to contend that it should not deal with a
question couched in abstract terms is “a mere affirmation devoid of any
justification” and that “the Court may give an advisory opinion on any legal
question, abstract or otherwise” (I.C.J. Reports 1996 (I),
p. 236, para. 15, referring to Conditions
of Admission of a State to Membership in the United Nations (Article 4 of the
Charter), Advisory Opinion, 1948, I.C.J. Reports 1947‑1948,
p. 61; Effect of Awards of Compensation Made by the United
Nations Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1954,
p. 51; and Legal Consequences for States of the Continued
Presence of South Africa in Namibia (South West Africa) notwithstanding
Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports
1971, p. 27, para. 40). In any
event, the Court considers that the question posed to it in relation to the
legal consequences of the construction of the wall is not an abstract one, and
moreover that it would be for the Court to determine for whom any such
consequences arise.
41. Furthermore,
the Court cannot accept the view, which has also been advanced in the present proceedings, that it has no jurisdiction because of the
“political” character of the question posed. As is clear from its long‑standing
jurisprudence on this point, the Court considers that the fact that a legal
question also has political aspects,
“as, in the nature of things, is the case with so many
questions which arise in international life, does not suffice to deprive it of
its character as a ‘legal question’ and to ‘deprive the Court of a competence
expressly conferred on it by its Statute’(Application
for Review of Judgement No. 158 of the United Nations Administrative Tribunal,
Advisory Opinion, I.C.J, Reports 1973, p. 172, para. 14).
Whatever its political aspects, the Court cannot refuse to admit the legal
character of a question which invites it to discharge an essentially judicial
task, namely, an assessment of the legality of the possible conduct of States
with regard to the obligations imposed upon them by international law (cf. Conditions
of Admission of a State to Membership in the United Nations (Article 4 of the
Charter), Advisory Opinion, 1948, I.C.J. Reports 1947‑1948,
pp. 61‑62; Competence of the General Assembly for the
Admission of a State to the United Nations, Advisory Opinion,
I.C.J. Reports 1950, pp. 6‑7; Certain Expenses of
the United Nations (Article 17, paragraph 2, of the Charter),
Advisory Opinion, I.C.J. Reports 1962, p. 155).” (Legality of
the Threat or Use of Nuclear Weapons, I.C.J. Reports 1996 (I), p. 234,
para. 13.)
In its Opinion concerning the Interpretation
of the Agreement of 25 March 1951 between the WHO and Egypt, the Court
indeed emphasized that, “in situations in which political considerations are
prominent it may be particularly necessary for an international organization to
obtain an advisory opinion from the Court as to the legal principles applicable
with respect to the matter under debate . . .”
(I.C.J. Reports 1980, p. 87, para. 33).
Moreover, the Court has affirmed in its Opinion on the Legality of the
Threat or Use of Nuclear Weapons that “the political nature of the motives
which may be said to have inspired the request and the political implications
that the opinion given might have are of no relevance in the establishment of
its jurisdiction to give such an opinion” (I.C.J. Reports 1996 (I),
p. 234, para. 13). The Court is of
the view that there is no element in the present proceedings which could lead
it to conclude otherwise.
*
42. The Court
accordingly has jurisdiction to give the advisory opinion requested by
resolution ES‑10/14 of the General Assembly.
* *
43. It has been
contended in the present proceedings, however, that the Court should decline to
exercise its jurisdiction because of the presence of specific aspects of the
General Assembly’s request that would render the exercise of the Court’s jurisdiction
improper and inconsistent with the Court’s judicial function.
44. The Court
has recalled many times in the past that Article 65, paragraph 1, of
its Statute, which provides that “The Court may give an advisory opinion . . .” (emphasis added), should be
interpreted to mean that the Court has a discretionary power to decline to give
an advisory opinion even if the conditions of jurisdiction are met (Legality
of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J.
Reports 1996 (I), p. 234, para. 14).
The Court however is mindful of the fact that its answer to a request for an
advisory opinion “represents its participation in the activities of the
Organization, and, in principle, should not be refused” (Interpretation of
Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory
Opinion, I.C.J. Reports 1950, p. 71; see also, for example, Difference
Relating to Immunity from Legal Process of a Special Rapporteur
of the Commission of Human Rights, Advisory Opinion, I.C.J. Reports
1999 (I), pp. 78‑79, para. 29.)
Given its responsibilities as the “principal judicial organ of the United
Nations” (Article 92 of the Charter), the Court should in principle not
decline to give an advisory opinion. In accordance with its consistent
jurisprudence, only “compelling reasons” should lead the Court to refuse its
opinion
(Certain Expenses of the United Nations (Article 17,
paragraph 2, of the Charter), Advisory Opinion, I.C.J. Reports 1962,
p. 155; see also, for example, Difference Relating to Immunity
from Legal Process of a Special Rapporteur of the
Commission of Human Rights, Advisory Opinion, I.C.J. Reports 1999 (I),
pp. 78‑79, para. 29.)
The present Court has never, in the exercise of this discretionary power, declined
to respond to a request for an advisory opinion. Its decision not to give
the advisory opinion on the Legality of the Use by a State of Nuclear
Weapons in Armed Conflict requested by the World Health Organization was
based on the Court’s lack of jurisdiction, and not on considerations of
judicial propriety (see I.C.J. Reports 1996 (I), p. 235, para. 14). Only on one occasion did the Court’s
predecessor, the Permanent Court of International Justice, take the view that
it should not reply to a question put to it (Status of Eastern Carelia, Advisory Opinion, 1923, P.C.I.J., Series B,
No. 5), but this was due to
“the very particular circumstances of the case, among
which were that the question directly concerned an already existing dispute,
one of the States parties to which was neither a party to the Statute of the
Permanent Court nor a Member of the League of Nations, objected to the
proceedings, and refused to take part in any way” (Legality of the Threat or
Use of Nuclear Weapons, I.C.J. Reports 1996 (I), pp. 235‑236,
para. 14).
45. These
considerations do not release the Court from the duty to satisfy itself, each
time it is seised of a request for an opinion, as to
the propriety of the exercise of its judicial function, by reference to the
criterion of “compelling reasons” as cited above. The Court will
accordingly examine in detail and in the light of its jurisprudence each of the
arguments presented to it in this regard.
*
46. The first
such argument is to the effect that the Court should not exercise its
jurisdiction in the present case because the request concerns a contentious
matter between
47. The Court
observes that the lack of consent to the Court’s contentious jurisdiction by
interested States has no bearing on the Court’s jurisdiction to give an
advisory opinion. In an Advisory Opinion of 1950, the Court explained
that:
“The consent of States,
parties to a dispute, is the basis of the Court’s jurisdiction in contentious
cases. The situation is different in regard to advisory proceedings even
where the Request for an Opinion relates to a legal question actually pending
between States. The Court’s reply is only of an advisory character:
as such, it has no binding force. It follows that no State, whether a
Member of the United Nations or not, can prevent the giving of an Advisory Opinion
which the United Nations considers to be desirable in order to obtain
enlightenment as to the course of action it should take. The Court’s
Opinion is given not to the States, but to the organ which is entitled to
request it; the reply of the Court, itself an
‘organ of the United Nations’, represents its participation in the activities
of the Organization, and, in principle, should not be refused.” (Interpretation
of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory
Opinion, I.C.J. Reports 1950, p. 71; see also Western Sahara,
I.C.J. Reports 1975, p. 24, para. 31.)
It followed from this that, in those
proceedings, the Court did not refuse to respond to the request for an advisory
opinion on the ground that, in the particular circumstances, it lacked
jurisdiction. The Court did however examine the opposition of certain
interested States to the request by the General Assembly in the context of
issues of judicial propriety. Commenting on its 1950 decision, the Court
explained in its Advisory Opinion on
“In certain circumstances . . . the
lack of consent of an interested State may render the giving of an advisory
opinion incompatible with the Court’s judicial character. An instance of
this would be when the circumstances disclose that to give a reply would have
the effect of circumventing the principle that a State is not obliged to allow
its disputes to be submitted to judicial settlement without its consent.”
(Western Sahara, I.C.J. Reports 1975, p. 25, paras. 32‑33.)
In applying that principle to the request
concerning
48. As regards
the request for an advisory opinion now before it, the Court acknowledges that
49. Furthermore,
the Court does not consider that the subject‑matter of the General
Assembly’s request can be regarded as only a bilateral matter between
and security, it is the Court’s view that the construction of the wall
must be deemed to be directly of concern to the United Nations. The
responsibility of the United Nations in this matter also has its origin in the
Mandate and the Partition Resolution concerning
50. The object
of the request before the Court is to obtain from the Court an opinion which
the General Assembly deems of assistance to it for the proper exercise of its
functions. The opinion is requested on a question which is of
particularly acute concern to the United Nations, and one which is located in a
much broader frame of reference than a bilateral dispute. In the
circumstances, the Court does not consider that to give an opinion would have
the effect of circumventing the principle of consent to judicial settlement,
and the Court accordingly cannot, in the exercise of its discretion,
decline to give an opinion on that ground.
*
51. The Court
now turns to another argument raised in the present proceedings in support of
the view that it should decline to exercise its jurisdiction. Some
participants have argued that an advisory opinion from the Court on the
legality of the wall and the legal consequences of its construction could
impede a political, negotiated solution to the Israeli‑Palestinian
conflict. More particularly, it has been contended that such an opinion
could undermine the scheme of the “Roadmap” (see paragraph 22 above),
which requires
This is a submission of a kind which the Court has already had to consider
several times in the past. For instance, in its Advisory opinion on the Legality
of the Threat or Use of Nuclear Weapons, the Court stated:
“It has . . . been submitted that a
reply from the Court in this case might adversely affect disarmament
negotiations and would, therefore, be contrary to the interest of the United
Nations. The Court is aware that, no matter what might be its conclusions
in any opinion it might give, they would have relevance for the continuing
debate on the matter in the General Assembly and would present an additional
element
in the negotiations on the matter. Beyond that,
the effect of the opinion is a matter of appreciation. The Court has
heard contrary positions advanced and there are no evident criteria by which it
can prefer one assessment to another.” (I.C.J. Reports 1996 (I),
p. 237, para. 17;
see also Western
52. One
participant in the present proceedings has indicated that the Court, if it were
to give a response to the request, should in any event do so keeping in mind
“two key aspects of the peace
process: the fundamental principle that permanent status issues must be
resolved through negotiations; and the need during the interim period for
the parties to fulfill their security
responsibilities so that the peace process can succeed”.
53. The Court is
conscious that the “Roadmap”, which was endorsed by
the Security Council in resolution 1515 (2003) (see paragraph 22
above), constitutes a negotiating framework for the resolution of the Israeli‑Palestinian
conflict. It is not clear, however, what influence the Court’s opinion
might have on those negotiations: participants in the present proceedings
have expressed differing views in this regard. The Court cannot regard
this factor as a compelling reason to decline to exercise its jurisdiction.
54. It was also
put to the Court by certain participants that the question of the construction
of the wall was only one aspect of the Israeli‑Palestinian conflict,
which could not be properly addressed in the present proceedings. The
Court does not however consider this a reason for it to decline to reply to the
question asked. The Court is indeed aware that the question of the wall
is part of a greater whole, and it would take this circumstance carefully into
account in any opinion it might give. At the same time, the question that
the General Assembly has chosen to ask of the Court is confined to the legal
consequences of the construction of the wall, and the Court would only examine
other issues to the extent that they might be necessary to its consideration of
the question put to it.
*
55. Several
participants in the proceedings have raised the further argument that the Court
should decline to exercise its jurisdiction because it does not have at its
disposal the requisite facts and evidence to enable it to reach its conclusions.
In particular,
into the nature and scope of the security threat to which the wall is
intended to respond and the effectiveness of that response, and, second, into
the impact of the construction for the Palestinians. This task, which
would already be difficult in a contentious case, would be further complicated
in an advisory proceeding, particularly since Israel alone possesses much of
the necessary information and has stated that it chooses not to address the
merits.
56. The Court
observes that the question whether the evidence available to it is sufficient
to give an advisory opinion must be decided in each particular instance.
In its Opinion concerning the Interpretation of Peace Treaties with
Bulgaria, Hungary and Romania (I.C.J. Reports 1950, p. 72) and
again in its Opinion on the Western Sahara, the Court made it clear that
what is decisive in these circumstances is “whether the Court has before it
sufficient information and evidence to enable it to arrive at a judicial
conclusion upon any disputed questions of fact the determination of which is
necessary for it to give an opinion in conditions compatible with its judicial
character” (Western Sahara, I.C.J. Reports 1975, pp. 28‑29, para. 46). Thus, for instance, in the
proceedings concerning the Status of Eastern Carelia,
the Permanent Court of International Justice decided to decline to give an
Opinion inter alia because the question put
“raised a question of fact which could not be elucidated without hearing both
parties” (Interpretation of Peace Treaties with Bulgaria, Hungary and
Romania, I.C.J. Reports 1950, p. 72; see
Status of Eastern Carelia, P.C.I.J.,
Series B, No. 5, p. 28). On the other hand, in the
57. In the
present instance, the Court has at its disposal the report of the Secretary‑General,
as well as a voluminous dossier submitted by him to the Court, comprising not
only detailed information on the route of the wall but also on its humanitarian
and socio‑economic impact on the Palestinian population. The
dossier includes several reports based on on‑site visits by special rapporteurs and competent organs of the United
Nations. The Secretary-General has further submitted to the Court a
written statement updating his report, which supplemented the information
contained therein. Moreover, numerous other participants have submitted
to the Court written statements which contain information relevant to a
response to the question put by the General Assembly. The Court notes in
particular that Israel’s Written Statement, although limited to issues of
jurisdiction and judicial propriety, contained observations on other matters,
including Israel’s concerns in terms of security, and was accompanied by
corresponding annexes; many other documents issued by the Israeli
Government on those matters are in the public domain.
58. The Court
finds that it has before it sufficient information and evidence to enable it to
give the advisory opinion requested by the General Assembly. Moreover,
the circumstance that others may evaluate and interpret these facts in a
subjective or political manner can be no argument
for a court of law to abdicate its judicial task. There is therefore
in the present case no lack of information such as to constitute a compelling
reason for the Court to decline to give the requested opinion.
*
59. In their
written statements, some participants have also put forward the argument that
the Court should decline to give the requested opinion on the legal
consequences of the construction of the wall because such opinion would lack
any useful purpose. They have argued that the advisory opinions of the
Court are to be seen as a means to enable an organ or agency in need of legal
clarification for its future action to obtain that clarification. In the
present instance, the argument continues, the General Assembly would not need
an opinion of the Court because it has already declared the construction of the
wall to be illegal and has already determined the legal consequences by
demanding that Israel stop and reverse its construction, and further, because
the General Assembly has never made it clear how it intended to use the
opinion.
60. As is clear
from the Court’s jurisprudence, advisory opinions have the purpose of
furnishing to the requesting organs the elements of law necessary for them in
their action. In its Opinion concerning Reservations to the Convention
on the Prevention and Punishment of the Crime of Genocide, the Court
observed: “The object of this request for an Opinion is to guide the
United Nations in respect of its own action.” (I.C.J.
Reports 1951, p. 19.) Likewise, in its Opinion on the Legal
Consequences for States of the Continued Presence of South Africa in Namibia
(South West Africa) notwithstanding Security Council Resolution 276 (1970),
the Court noted: “The request is put forward by a United Nations organ
with reference to its own decisions and it seeks legal advice from the Court on
the consequences and implications of these decisions.” (I.C.J. Reports
1971, p. 24, para. 32.) The Court
found on another occasion that the advisory opinion it was to give would
“furnish the General Assembly with elements of a legal character relevant to
its further treatment of the decolonization of Western Sahara” (Western
Sahara, I.C.J. Reports 1975, p. 37, para. 72).
61. With regard
to the argument that the General Assembly has not made it clear what use it
would make of an advisory opinion on the wall, the Court would recall, as
equally relevant in the present proceedings, what it stated in its Opinion on
the Legality of the Threat or Use of Nuclear Weapons:
“Certain States have observed that the General Assembly has not explained to
the Court for what precise purposes it seeks the advisory opinion.
Nevertheless, it is not for the Court itself to purport to decide whether or
not an advisory opinion is needed by the Assembly for the performance of its
functions. The General Assembly has the right to decide for itself on the
usefulness of an opinion in the light of its own needs.” (I.C.J. Reports 1996 (I), p. 237, para. 16.)
62. It follows that the Court
cannot decline to answer the question posed based on the ground that its
opinion would lack any useful purpose. The Court cannot substitute its
assessment of the usefulness of the opinion requested for that of the organ
that seeks such opinion, namely the General Assembly. Furthermore, and in
any event, the Court considers that the General Assembly has not yet determined
all the possible consequences of its own resolution. The Court’s task
would be to determine in a comprehensive manner the legal consequences of the
construction of the wall, while the General Assembly - and the Security Council - may then draw conclusions from the Court’s
findings.
*
63. Lastly, the
Court will turn to another argument advanced with regard to the propriety of
its giving an advisory opinion in the present proceedings. Israel has
contended that Palestine, given its responsibility for acts of violence against
Israel and its population which the wall is aimed at addressing, cannot seek
from the Court a remedy for a situation resulting from its own
wrongdoing. In this context, Israel has invoked the maxim nullus commodum capere potest de sua injuria propria,
which it considers to be as relevant in advisory proceedings as it is in
contentious cases. Therefore, Israel concludes, good faith and the
principle of “clean hands” provide a compelling reason that should lead the
Court to refuse the General Assembly’s request.
64. The Court
does not consider this argument to be
pertinent. As was emphasized earlier, it was the General Assembly which
requested the advisory opinion, and the opinion is to be given to the General
Assembly, and not to a specific State or entity.
* *
65. In the light
of the foregoing, the Court concludes not only that it has jurisdiction to give
an opinion on the question put to it by the General Assembly (see paragraph 42
above), but also that there is no compelling reason for it to use its
discretionary power not to give that opinion.
*
* *
66. The Court will now address
the question put to it by the General Assembly in resolution ES‑10/14.
The Court recalls that the question is as follows:
“What are the legal consequences arising from the construction of the wall
being built by Israel, the occupying Power, in the Occupied Palestinian
Territory, including in and around East Jerusalem, as described in the report
of the Secretary‑General, considering the rules and principles of
international law, including the Fourth Geneva Convention of 1949, and relevant
Security Council and General Assembly resolutions?”
67. As explained
in paragraph 82 below, the “wall” in question is a complex construction,
so that that term cannot be understood in a limited physical sense.
However, the other terms used, either by Israel (“fence”) or by the Secretary‑General
(“barrier”), are no more accurate if understood in the physical sense. In
this Opinion, the Court has therefore chosen to use the terminology employed by
the General Assembly.
The Court notes furthermore that the request of the General Assembly concerns
the legal consequences of the wall being built “in the Occupied Palestinian
Territory, including in and around East Jerusalem”.
As also explained below (see paragraphs 79‑84 below), some parts of the
complex are being built, or are planned to be built, on the territory of Israel
itself; the Court does not consider that it is called upon to examine the
legal consequences arising from the construction of those parts of the wall.
68. The question
put by the General Assembly concerns the legal consequences of the construction
of the wall in the Occupied Palestinian Territory. However, in order to
indicate those consequences to the General Assembly the Court must first
determine whether or not the construction of that wall breaches international
law (see paragraph 39 above). It will therefore make this
determination before dealing with the consequences of the construction.
69. To do so,
the Court will first make a brief analysis of the status of the territory
concerned, and will then describe the works already constructed or in course of
construction in that territory. It will then indicate the applicable law
before seeking to establish whether that law has been breached.
* *
70. Palestine
was part of the Ottoman Empire. At the end of the First World War, a
class “A” Mandate for Palestine was entrusted to Great Britain by the
League of Nations, pursuant to paragraph 4 of Article 22 of the
Covenant, which provided that:
“Certain communities, formerly
belonging to the Turkish Empire have reached a stage of development where their
existence as independent nations can be provisionally recognized subject to the
rendering of administrative advice and assistance by a Mandatory until such
time as they are able to stand alone.”
The Court recalls that in its Advisory Opinion on the International Status
of South West Africa, speaking of mandates in general, it observed
that “The Mandate was created, in the interest of the inhabitants of the
territory, and of humanity in general, as an international institution with an
international object - a sacred
trust of civilization.” (I.C.J. Reports 1950,
p. 132.) The Court also held in this regard that “two
principles were considered to be of paramount importance: the principle
of non‑annexation and the principle that the well‑being and
development of . . . peoples [not yet
able to govern themselves] form[ed] ‘a sacred trust of civilization’” (ibid.,
p. 131).
The territorial boundaries of the Mandate for Palestine were laid down by
various instruments, in particular on the eastern border by a British
memorandum of 16 September 1922 and an Anglo‑Transjordanian Treaty of 20 February 1928.
71. In 1947 the
United Kingdom announced its intention to complete evacuation of the mandated
territory by 1 August 1948, subsequently advancing that date to
15 May 1948. In the meantime, the General Assembly had on
29 November 1947 adopted resolution 181 (II) on the future
government of Palestine, which “Recommends to the United Kingdom . . . and to all other Members of the
United Nations the adoption and implementation . . . of the Plan
of Partition” of the territory, as set forth in the resolution, between two
independent States, one Arab, the other Jewish, as well as the creation of a
special international régime for the City of
Jerusalem. The Arab population of Palestine and the Arab States rejected
this plan, contending that it was unbalanced; on
14 May 1948, Israel proclaimed its independence on the strength of
the General Assembly resolution; armed conflict then broke out between
Israel and a number of Arab States and the Plan of Partition was not
implemented.
72. By
resolution 62 (1948) of 16 November 1948, the Security Council decided
that “an armistice shall be established in all sectors of Palestine” and called
upon the parties directly involved in the conflict to seek agreement to this
end. In conformity with this decision, general armistice agreements were
concluded in 1949 between Israel and the neighbouring States through mediation
by the United Nations. In particular, one such agreement was signed in
Rhodes on 3 April 1949 between Israel and Jordan.
Articles V and VI of that Agreement fixed the armistice demarcation line
between Israeli and Arab forces (often later called the “Green Line” owing to
the colour used for it on maps; hereinafter the “Green Line”).
Article III, paragraph 2, provided that “No element of
the . . . military or para‑military
forces of either Party . . . shall advance beyond or pass over
for any purpose whatsoever the Armistice Demarcation
Lines . . .” It was agreed in Article VI,
paragraph 8, that these provisions would not be “interpreted as
prejudicing, in any sense, an ultimate political settlement between the
Parties”. It was also stated that “the Armistice
Demarcation Lines defined in articles V and VI of [the] Agreement
[were] agreed upon by the Parties without prejudice to future territorial
settlements or boundary lines or to claims of either Party relating thereto”. The Demarcation Line was subject to such
rectification as might be agreed upon by the parties.
73. In the 1967
armed conflict, Israeli forces occupied all the territories which had
constituted
74. On
75. From 1967
onwards,
“all legislative and
administrative actions taken by
Later, following the adoption by Israel on 30 July 1980 of the Basic
Law making Jerusalem the “complete and united” capital of Israel, the Security
Council, by resolution 478 (1980) of 20 August 1980, stated that
the enactment of that Law constituted a violation of international law and that
“all legislative and administrative measures and actions taken by Israel, the
occupying Power, which have altered or purport to alter the character and
status of the Holy City of Jerusalem . . . are null and
void”. It further decided “not to recognize the ‘basic law’ and such
other actions by
76.
Subsequently, a peace treaty was signed on
77. Lastly, a number of
agreements have been signed since 1993 between
78. The Court
would observe that, under customary international law as reflected (see
paragraph 89 below) in Article 42 of the Regulations Respecting the
Laws and Customs of War on Land annexed to the Fourth Hague Convention of
18 October 1907 (hereinafter “the Hague Regulations of 1907”),
territory is considered occupied when it is actually placed under the authority
of the hostile army, and the occupation extends only to the territory where
such authority has been established and can be exercised.
The territories situated between the Green Line (see paragraph 72 above)
and the former eastern boundary of
*
79. It is essentially in these territories that
80. The report
of the Secretary‑General states that “The Government of Israel has since
1996 considered plans to halt infiltration into
The project was taken a stage further when, on
from the
81. According to
the Written Statement of the Secretary‑General, the first part of these
works (Phase A), which ultimately extends for a distance of
150 kilometres, was declared completed on
According to the Written Statement of the Secretary‑General, the works
carried out under Phase B were still in progress in January 2004.
Thus an initial section of this stretch, which runs near or on the Green Line
to the village of al‑Mutilla, was almost
complete in January 2004. Two additional sections diverge at this
point. Construction started in early January 2004 on one section
that runs due east as far as the Jordanian border. Construction of the
second section, which is planned to run from the Green Line to the
The Written Statement of the Secretary‑General further states that
Phase C of the work, which runs from the terminus of Phase A, near
the Elkana settlement, to the
Further construction also
started in late November 2003 along the south‑eastern part of the
municipal boundary of
As at 25 January 2004, according to the Written Statement of the
Secretary‑General, some 190 kilometres of construction had been
completed, covering Phase A and the greater part of Phase B.
Further construction in Phase C had begun in certain areas of the central
The Israeli Government has explained that the routes and timetable as described
above are subject to modification. In February 2004, for example, an 8‑kilometre
section near the town of
82. According to
the description in the report and the Written Statement of the Secretary‑General,
the works planned or completed have resulted or will result in a complex
consisting essentially of:
(1) a fence with electronic
sensors;
(2) a ditch (up to
4 metres deep);
(3) a two‑lane asphalt
patrol road;
(4) a trace road (a strip of
sand smoothed to detect footprints) running parallel to the fence;
(5) a stack of six coils
of barbed wire marking the perimeter of the complex.
The complex has a width of 50 to 70 metres, increasing to as much as
100 metres in some places. “Depth barriers” may be added to these
works.
The approximately 180 kilometres of the complex completed or under
construction as of the time when the Secretary‑General submitted his
report included some 8.5 kilometres of concrete wall. These are
generally found where Palestinian population centres are close to or abut
83. According to
the report of the Secretary‑General, in its northernmost part, the wall
as completed or under construction barely deviates from the Green Line.
It nevertheless lies within occupied territories for most of its course.
The works deviate more than 7.5 kilometres from the Green Line in certain
places to encompass settlements, while encircling Palestinian population
areas. A stretch of 1 to 2 kilometres west of Tulkarm
appears to run on the Israeli side of the Green Line. Elsewhere, on the
other hand, the planned route would deviate eastward by up to
22 kilometres. In the case of
84. On the basis
of that route, approximately 975 square kilometres (or 16.6 per cent
of the
85. Lastly, it
should be noted that the construction of the wall has been accompanied by the
creation of a new administrative régime. Thus
in October 2003 the Israeli Defence Forces issued Orders establishing the part
of the
* *
86. The Court
will now determine the rules and principles of international law which are
relevant in assessing the legality of the measures taken by
87. The Court
first recalls that, pursuant to Article 2, paragraph 4, of the United
Nations Charter:
“All Members shall refrain in their international relations from the threat or
use of force against the territorial integrity or political independence of any
State, or in any other manner inconsistent with the Purposes of the United
Nations.”
On
88. The Court
also notes that the principle of self‑determination of peoples has been
enshrined in the United Nations Charter and reaffirmed by the General Assembly
in resolution 2625 (XXV) cited above, pursuant to which “Every State
has the duty to refrain from any forcible action which deprives peoples
referred to [in that resolution] . . . of their right to self‑determination.”
Article 1 common to the International Covenant on Economic, Social and Cultural
Rights and the International Covenant on Civil and Political Rights reaffirms
the right of all peoples to self‑determination, and lays upon the States
parties the obligation to promote the realization of that right and to respect
it, in conformity with the provisions of the United Nations Charter.
The Court would recall that in 1971 it emphasized that
current developments in “international law in regard to non‑self‑governing
territories, as enshrined in the Charter of the United Nations, made the
principle of self‑determination applicable to all [such
territories]”. The Court went on to state that “These developments leave
little doubt that the ultimate objective of the sacred trust” referred to in
Article 22, paragraph 1, of the Covenant of the League of Nations
“was the self‑determination . . .
of the peoples concerned” (Legal Consequences for States of the Continued
Presence of South Africa in Namibia (South West Africa) notwithstanding
Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports
1971, p. 31, paras. 52‑53).
The Court has referred to this principle on a number of occasions in its
jurisprudence (ibid.; see also Western
Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 68, para. 162). The Court indeed made it clear that
the right of peoples to self‑determination is today a right erga omnes (see
89. As regards
international humanitarian law, the Court would first note that
The Court also observes that,
pursuant to Article 154 of the Fourth Geneva Convention, that Convention
is supplementary to Sections II and III of the Hague
Regulations. Section III of those Regulations, which concerns
“Military authority over the territory of the hostile State”,
is particularly pertinent in the present case.
90. Secondly,
with regard to the Fourth Geneva Convention, differing views have been
expressed by the participants in these proceedings.
91. The Court
would recall that the Fourth Geneva Convention was ratified by
Furthermore,
92. Moreover,
for the purpose of determining the scope of application of the Fourth Geneva
Convention, it should be recalled that under common Article 2 of the four
Conventions of
“In addition to the provisions which shall be implemented in peacetime, the
present Convention shall apply to all cases of declared war or of any other
armed conflict which may arise between two or more of the High Contracting
Parties, even if the state of war is not recognized by one of them.
The Convention shall also apply to all cases of partial or total occupation of
the territory of a High Contracting Party, even if the said occupation meets
with no armed resistance.
Although one of the Powers in conflict may not be a party to the present
Convention, the Powers who are parties thereto shall remain bound by it in
their mutual relations. They shall furthermore be bound by the Convention
in relation to the said Power, if the latter accepts and applies the provisions
thereof.”
93. After the
occupation of the
“the
Subsequently, the Israeli authorities have
indicated on a number of occasions that in fact they generally apply the
humanitarian provisions of the Fourth Geneva Convention within the occupied
territories. However, according to
94. The Court
would recall that, according to customary international law as expressed in
Article 31 of the Vienna Convention on the Law of Treaties of
23 May 1969, a treaty must be interpreted in good faith in accordance
with the ordinary meaning to be given to its terms in their context and in the
light of its object and purpose. Article 32 provides that:
“Recourse may be had to supplementary means of interpretation, including the
preparatory work of the treaty and the circumstances of its conclusion, in
order to confirm the meaning resulting from the application of article 31,
or to determine the meaning when the interpretation according to article 31 . . . leaves the meaning ambiguous or
obscure; or . . . leads to a result which is manifestly
obscure or unreasonable.” (See Oil Platforms (Islamic Republic of Iran v.
United States of America), Preliminary Objections, I.C.J. Reports
1996 (II), p. 812, para. 23;
see, similarly, Kasikili/Sedudu Island
(Botswana/Namibia), I.C.J. Reports 1999 (II), p. 1059, para. 18, and Sovereignty over Pulau
Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment, I.C.J. Reports 2002,
p. 645, para. 37.)
95. The Court
notes that, according to the first paragraph of Article 2 of the Fourth
Geneva Convention, that Convention is applicable when two conditions are
fulfilled: that there exists an armed conflict (whether or not a state of
war has been recognized); and that the conflict has arisen between two
contracting parties. If those two conditions are satisfied, the Convention
applies, in particular, in any territory occupied in the course of the conflict
by one of the contracting parties.
The object of the second paragraph of Article 2 is not to restrict the
scope of application of the Convention, as defined by the first paragraph, by
excluding therefrom territories not falling under the
sovereignty of one of the contracting parties. It is directed simply to
making it clear that, even if occupation effected during the conflict met no
armed resistance, the Convention is still applicable.
This interpretation reflects
the intention of the drafters of the Fourth Geneva Convention to protect
civilians who find themselves, in whatever way, in the hands of the occupying
Power. Whilst the drafters of the Hague Regulations of 1907 were as much
concerned with protecting the rights of a State whose territory is occupied, as
with protecting the inhabitants of that territory, the drafters of the Fourth
Geneva Convention sought to guarantee the protection of civilians in time of war,
regardless of the status of the occupied territories, as is shown by
Article 47 of the Convention.
That interpretation is confirmed by the Convention’s travaux
préparatoires. The Conference of Government
Experts convened by the International Committee of the Red Cross (hereinafter,
“ICRC”) in the aftermath of the Second World War for the purpose of preparing
the new Geneva Conventions recommended that these conventions be applicable to
any armed conflict “whether [it] is or is not recognized as a state of war by
the parties” and “in cases of occupation of territories in the absence of any
state of war” (Report on the Work of the Conference of Government Experts
for the Study of the Conventions for the Protection of War Victims, Geneva, 14‑26 April 1947,
p. 8). The drafters of the second paragraph of Article 2 thus
had no intention, when they inserted that paragraph into the Convention, of
restricting the latter’s scope of application. They were merely seeking
to provide for cases of occupation without combat, such as the occupation of
Bohemia and Moravia by Germany in 1939.
96. The Court
would moreover note that the States parties to the Fourth Geneva Convention
approved that interpretation at their Conference on
15 July 1999. They issued a statement in which they “reaffirmed
the applicability of the Fourth Geneva Convention to the Occupied Palestinian
Territory, including East Jerusalem”.
Subsequently, on 5 December 2001, the High Contracting Parties,
referring in particular to Article 1 of the Fourth Geneva Convention of
1949, once again reaffirmed the “applicability of the Fourth Geneva Convention
to the Occupied Palestinian Territory, including East Jerusalem”. They further reminded the Contracting Parties
participating in the Conference, the parties to the conflict, and the State of
Israel as occupying Power, of their respective obligations.
97. Moreover,
the Court would observe that the ICRC, whose special position with respect to
execution of the Fourth Geneva Convention must be “recognized and respected at
all times” by the parties pursuant to Article 142 of the Convention, has
also expressed its opinion on the interpretation to be given to the
Convention. In a declaration of 5 December 2001, it recalled
that “the ICRC has always affirmed the de jure
applicability of the Fourth Geneva Convention to the territories occupied since
1967 by the State of Israel, including East Jerusalem”.
98. The Court
notes that the General Assembly has, in many of its resolutions, taken a
position to the same effect. Thus on 10 December 2001 and
9 December 2003, in resolutions 56/60 and 58/97, it reaffirmed
“that the Geneva Convention relative to the Protection of Civilian Persons in
Time of War, of 12 August 1949, is applicable to the Occupied
Palestinian Territory, including East Jerusalem, and other Arab territories
occupied by Israel since 1967”.
99. The Security
Council, for its part, had already on 14 June 1967 taken the view in
resolution 237 (1967) that “all the obligations of the Geneva Convention
relative to the Treatment of Prisoners of War . . . should be
complied with by the parties involved in the conflict”.
Subsequently, on 15 September 1969, the Security Council, in
resolution 271 (1969), called upon “Israel scrupulously to observe the
provisions of the Geneva Conventions and international law governing military
occupation”.
Ten years later, the Security Council examined “the policy and practices of
Israel in establishing settlements in the Palestinian and other Arab
territories occupied since 1967”. In
resolution 446 (1979) of 22 March 1979, the Security Council
considered that those settlements had “no legal validity” and affirmed “once
more that the Geneva Convention relative to the Protection of Civilian
Persons in Time of War, of 12 August 1949, is applicable to the Arab
territories occupied by Israel since 1967, including Jerusalem”. It
called “once more upon Israel, as the occupying Power, to abide
scrupulously” by that Convention.
On 20 December 1990, the Security Council, in
resolution 681 (1990), urged “the Government of Israel to accept the de
jure applicability of the Fourth Geneva
Convention . . . to all the territories occupied by Israel since
1967 and to abide scrupulously by the provisions of the Convention”. It
further called upon “the high contracting parties to the said Fourth Geneva
Convention to ensure respect by Israel, the occupying Power, for its
obligations under the Convention in accordance with article 1 thereof”.
Lastly, in resolutions 799 (1992) of 18 December 1992 and
904 (1994) of 18 March 1994, the Security Council reaffirmed its
position concerning the applicability of the Fourth Geneva Convention in the
occupied territories.
100. The Court
would note finally that the Supreme Court of Israel, in a judgment dated
30 May 2004, also found that:
“The military operations of the [Israeli Defence Forces] in Rafah,
to the extent they affect civilians, are governed by Hague Convention IV
Respecting the Laws and Customs of War on Land 1907 . . . and
the Geneva Convention Relative to the Protection of Civilian Persons in Time of
War 1949.”
101. In view of
the foregoing, the Court considers that the Fourth Geneva Convention is
applicable in any occupied territory in the event of an armed conflict arising
between two or more High Contracting Parties. Israel and Jordan were
parties to that Convention when the 1967 armed conflict broke out. The
Court accordingly finds that that Convention is applicable in the Palestinian
territories which before the conflict lay to the east of the Green Line and
which, during that conflict, were occupied by Israel, there being no need for
any enquiry into the precise prior status of those territories.
*
102. The participants in the proceedings before the Court also disagree whether
the international human rights conventions to which Israel is party apply
within the Occupied Palestinian Territory. Annex I
to the report of the Secretary‑General states:
“4. Israel denies that the
International Covenant on Civil and Political Rights and the International
Covenant on Economic, Social and Cultural Rights, both of which it has signed, are applicable to the occupied Palestinian
territory. It asserts that humanitarian law is the protection granted in
a conflict situation such as the one in the West Bank and Gaza Strip, whereas
human rights treaties were intended for the protection of citizens from their
own Government in times of peace.”
Of the other participants in the proceedings, those who addressed this issue
contend that, on the contrary, both Covenants are applicable within the
Occupied Palestinian Territory.
103. On
3 October 1991 Israel ratified both the International Covenant on
Economic, Social and Cultural Rights of 19 December 1966 and the
International Covenant on Civil and Political Rights of the same date, as well
as the United Nations Convention on the Rights of the Child of 20 November 1989.
It is a party to these three instruments.
104. In order to
determine whether these texts are applicable in the Occupied Palestinian
Territory, the Court will first address the issue of the relationship between
international humanitarian law and human rights law and then that of the
applicability of human rights instruments outside national territory.
105. In its
Advisory Opinion of 8 July 1996 on the Legality of the Threat or
Use of Nuclear Weapons, the Court had occasion to address the first of
these issues in relation to the International Covenant on Civil and Political
Rights. In those proceedings certain States had argued that “the Covenant
was directed to the protection of human rights in peacetime, but that questions
relating to unlawful loss of life in hostilities were governed by the law
applicable in armed conflict” (I.C.J. Reports 1996 (I),
p. 239, para. 24).
The Court rejected this argument, stating that:
“the protection of the
International Covenant of Civil and Political Rights does not cease in times of
war, except by operation of Article 4 of the Covenant whereby certain
provisions may be derogated from in a time of national emergency. Respect
for the right to life is not, however, such a provision. In principle,
the right not arbitrarily to be deprived of one’s life applies also in
hostilities. The test of what is an arbitrary deprivation of life,
however, then falls to be determined by the applicable lex
specialis, namely, the law applicable in armed conflict
which is designed to regulate the conduct of hostilities.” (Ibid., p. 240, para. 25.)
106. More
generally, the Court considers that the protection offered by human rights
conventions does not cease in case of armed conflict, save through the effect
of provisions for derogation of the kind to be found in Article 4 of the
International Covenant on Civil and Political Rights. As regards the
relationship between international humanitarian law and human rights law, there
are thus three possible situations: some rights may be exclusively
matters of international
humanitarian law; others may be exclusively matters of human
rights law; yet others may be matters of both these branches of
international law. In order to answer the question put to it, the Court
will have to take into consideration both these branches of international law,
namely human rights law and, as lex specialis, international humanitarian law.
107. It remains
to be determined whether the two international Covenants and the Convention on
the Rights of the Child are applicable only on the territories of the States
parties thereto or whether they are also applicable outside those territories
and, if so, in what circumstances.
108. The scope
of application of the International Covenant on Civil and Political Rights is
defined by Article 2, paragraph 1, thereof, which provides:
“Each State Party to the present Covenant undertakes to respect and to ensure
to all individuals within its territory and subject to its jurisdiction the
rights recognized in the present Covenant, without distinction of any kind,
such as race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status.”
This provision can be interpreted as covering only individuals who are both
present within a State’s territory and subject to that State’s
jurisdiction. It can also be construed as covering both individuals
present within a State’s territory and those outside that territory but subject
to that State’s jurisdiction. The Court will thus seek to determine the
meaning to be given to this text.
109. The Court
would observe that, while the jurisdiction of States is primarily territorial,
it may sometimes be exercised outside the national territory. Considering
the object and purpose of the International Covenant on Civil and Political
Rights, it would seem natural that, even when such is the case, States parties
to the Covenant should be bound to comply with its provisions.
The constant practice of the Human Rights Committee is consistent with this.
Thus, the Committee has found the Covenant applicable where the State exercises
its jurisdiction on foreign territory. It has ruled on the legality of
acts by Uruguay in cases of arrests carried out by Uruguayan agents in Brazil
or Argentina (case No. 52/79, López
Burgos v. Uruguay; case
No. 56/79, Lilian Celiberti
de Casariego v. Uruguay). It
decided to the same effect in the case of the confiscation of a passport by a
Uruguayan consulate in Germany (case No. 106/81, Montero v. Uruguay).
The travaux préparatoires
of the Covenant confirm the Committee’s interpretation of Article 2 of
that instrument. These show that, in adopting the wording chosen, the
drafters of the Covenant did not intend to allow States to escape from their
obligations when they exercise jurisdiction outside their national
territory. They only intended to prevent persons residing abroad from
asserting, vis‑à‑vis their State of origin, rights that do not fall
within the competence of that State, but of that of the State of residence (see
the discussion of the preliminary draft in the Commission on Human Rights,
E/CN.4/SR.194, para. 46;
and United Nations, Official Records of the General Assembly, Tenth
Session, Annexes, A/2929, Part II, Chap. V, para. 4 (1955)).
110. The Court takes note in
this connection of the position taken by Israel, in relation to the
applicability of the Covenant, in its communications to the Human Rights
Committee, and of the view of the Committee.
In 1998, Israel stated that, when preparing its report to the Committee, it had
had to face the question “whether individuals resident in the occupied
territories were indeed subject to Israel’s jurisdiction” for purposes of the
application of the Covenant (CCPR/C/SR.1675, para. 21).
Israel took the position that “the Covenant and similar instruments did not
apply directly to the current situation in the occupied territories” (ibid., para. 27).
The Committee, in its concluding observations after examination of the report,
expressed concern at Israel’s attitude and pointed “to the long‑standing
presence of Israel in [the occupied] territories, Israel’s ambiguous attitude
towards their future status, as well as the exercise of effective jurisdiction
by Israeli security forces therein” (CCPR/C/79/Add.93, para. 10).
In 2003 in face of Israel’s consistent position, to the effect that “the
Covenant does not apply beyond its own territory, notably in the West Bank and Gaza . . .”, the Committee reached the
following conclusion:
“in the current circumstances, the provisions of the
Covenant apply to the benefit of the population of the Occupied Territories, for
all conduct by the State party’s authorities or agents in those territories
that affect the enjoyment of rights enshrined in the Covenant and fall within
the ambit of State responsibility of Israel under the principles of public
international law” (CCPR/CO/78/ISR, para. 11).
111. In
conclusion, the Court considers that the International Covenant on Civil and
Political Rights is applicable in respect of acts done by a State in the
exercise of its jurisdiction outside its own territory.
112. The
International Covenant on Economic, Social and Cultural Rights contains no
provision on its scope of application. This may be explicable by the fact
that this Covenant guarantees rights which are essentially territorial.
However, it is not to be excluded that it applies both to territories over
which a State party has sovereignty and to those over which that State
exercises territorial jurisdiction. Thus Article 14 makes provision
for transitional measures in the case of any State which “at the time of
becoming a Party, has not been able to secure in its
metropolitan territory or other territories under its jurisdiction compulsory
primary education, free of charge”.
It is not without relevance to recall in this regard the position taken by
Israel in its reports to the Committee on Economic, Social and Cultural
Rights. In its initial report to the Committee of
4 December 1998, Israel provided “statistics indicating the enjoyment
of the rights enshrined in the Covenant by Israeli settlers in the occupied
Territories”. The Committee noted that,
according to Israel, “the Palestinian population within the same jurisdictional
areas were excluded from both the report and the protection of the Covenant”
(E/C.12/1/Add. 27, para. 8). The
Committee expressed
its concern in this regard, to which Israel
replied in a further report of 19 October 2001 that it has
“consistently maintained that the Covenant does not apply to areas that are not
subject to its sovereign territory and jurisdiction” (a formula inspired by the
language of the International Covenant on Civil and Political Rights).
This position, continued Israel, is “based on the well‑established
distinction between human rights and humanitarian law under international
law”. It added: “the Committee’s mandate cannot relate to events in
the West Bank and the Gaza Strip, inasmuch as they are part and parcel of the
context of armed conflict as distinct from a relationship of human rights”
(E/1990/6/Add. 32, para. 5). In view
of these observations, the Committee reiterated its concern about Israel’s
position and reaffirmed “its view that the State party’s obligations under the
Covenant apply to all territories and populations under its effective control”
(E/C.12/1/Add.90, paras. 15 and 31).
For the reasons explained in paragraph 106 above, the Court cannot accept
Israel’s view. It would also observe that the territories occupied by
Israel have for over 37 years been subject to its territorial jurisdiction
as the occupying Power. In the exercise of the powers available to it on
this basis, Israel is bound by the provisions of the International Covenant on
Economic, Social and Cultural Rights. Furthermore, it is under an
obligation not to raise any obstacle to the exercise of such rights in those
fields where competence has been transferred to Palestinian authorities.
113. As regards
the Convention on the Rights of the Child of 20 November 1989, that
instrument contains an Article 2 according to which “States Parties shall
respect and ensure the rights set forth in the . . .
Convention to each child within their jurisdiction . . .”.
That Convention is therefore applicable within the Occupied Palestinian
Territory.
* *
114. Having
determined the rules and principles of international law relevant to reply to
the question posed by the General Assembly, and having ruled in particular on
the applicability within the Occupied Palestinian Territory of international
humanitarian law and human rights law, the Court will now seek to ascertain
whether the construction of the wall has violated those rules and principles.
*
115. In this
regard, Annex II to the report of the Secretary‑General, entitled
“Summary Legal Position of the Palestine Liberation Organization”, states that
“The construction of the Barrier is an attempt to annex the territory contrary
to international law” and that “The de facto annexation of land interferes with
the territorial sovereignty and consequently with the right of the Palestinians
to
self‑determination.” This view was echoed in certain of
the written statements submitted to the Court and in the views expressed at the
hearings. Inter alia, it was contended
that: “The wall severs the territorial sphere over which the Palestinian
people are entitled to exercise their right of self‑determination and
constitutes a violation of the legal principle prohibiting the acquisition of
territory by the use of force.” In this connection, it was in particular
emphasized that “The route of the wall is designed to change the demographic
composition of the Occupied Palestinian Territory, including East Jerusalem, by
reinforcing the Israeli settlements” illegally established on the Occupied
Palestinian Territory. It was further contended that the wall aimed at
“reducing and parcelling out the territorial sphere over which the Palestinian
people are entitled to exercise their right of self‑determination”.
116. For its
part, Israel has argued that the wall’s sole purpose is to enable it
effectively to combat terrorist attacks launched from the West Bank.
Furthermore, Israel has repeatedly stated that the Barrier is a temporary
measure (see report of the Secretary‑General, para. 29).
It did so inter alia through its Permanent
Representative to the United Nations at the Security Council meeting of
14 October 2003, emphasizing that “[the fence] does not annex
territories to the State of Israel”, and that Israel is “ready and able, at
tremendous cost, to adjust or dismantle a fence if so required as part of a
political settlement” (S/PV.4841, p. 10). Israel’s Permanent
Representative restated this view before the General Assembly on 20 October and
8 December 2003. On this latter occasion, he added: “As
soon as the terror ends, the fence will no longer be necessary. The fence
is not a border and has no political significance. It does not change the
legal status of the territory in any way.” (A/ES‑10/PV.23,
p. 6.)
117. The Court
would recall that both the General Assembly and the Security Council have
referred, with regard to Palestine, to the customary rule of “the
inadmissibility of the acquisition of territory by war” (see paragraphs 74
and 87 above). Thus in resolution 242 (1967) of
22 November 1967, the Security Council, after recalling this rule,
affirmed that:
“the fulfilment of Charter
principles requires the establishment of a just and lasting peace in the Middle
East which should include the application of both the following principles:
(i)
Withdrawal of Israel armed forces from territories occupied in the recent
conflict;
(ii) Termination of all
claims or states of belligerency and respect for and acknowledgement of the
sovereignty, territorial integrity and political independence of every State in
the area and their right to live in peace within secure and recognized
boundaries free from threats or acts of force”.
It is on this same basis that the Council has several times condemned the
measures taken by Israel to change the status of Jerusalem (see
paragraph 75 above).
118. As regards the principle
of the right of peoples to self‑determination, the Court observes that
the existence of a “Palestinian people” is no longer in issue. Such
existence has moreover been recognized by Israel in the exchange of letters of
9 September 1993 between Mr. Yasser Arafat,
President of the Palestine Liberation Organization (PLO) and
Mr. Yitzhak Rabin, Israeli Prime Minister. In that
correspondence, the President of the PLO recognized “the right of the State of
Israel to exist in peace and security” and made various other
commitments. In reply, the Israeli Prime Minister informed him that, in
the light of those commitments, “the Government of Israel has decided to
recognize the PLO as the representative of the Palestinian people”. The Israeli‑Palestinian Interim Agreement on
the West Bank and the Gaza Strip of 28 September 1995 also refers a
number of times to the Palestinian people and its “legitimate rights”
(Preamble, paras. 4, 7, 8; Article II, para. 2; Article III, paras. 1 and 3; Article XXII, para. 2). The Court considers that those rights
include the right to self‑determination, as the General Assembly has
moreover recognized on a number of occasions (see, for example,
resolution 58/163 of 22 December 2003).
119. The Court
notes that the route of the wall as fixed by the Israeli Government includes
within the “Closed Area” (see paragraph 85 above) some
80 per cent of the settlers living in the Occupied Palestinian
Territory. Moreover, it is apparent from an examination of the map
mentioned in paragraph 80 above that the wall’s sinuous route has been
traced in such a way as to include within that area the great majority of the
Israeli settlements in the occupied Palestinian Territory (including East
Jerusalem).
120. As regards
these settlements, the Court notes that Article 49, paragraph 6, of
the Fourth Geneva Convention provides: “The Occupying Power shall not
deport or transfer parts of its own civilian population into the territory it
occupies.” That provision prohibits not only deportations or forced
transfers of population such as those carried out during the Second World War,
but also any measures taken by an occupying Power in order to organize or
encourage transfers of parts of its own population into the occupied territory.
In this respect, the information provided to the Court shows that, since 1977,
Israel has conducted a policy and developed practices involving the
establishment of settlements in the Occupied Palestinian Territory, contrary to
the terms of Article 49, paragraph 6, just cited.
The Security Council has thus taken the view that such policy and practices
“have no legal validity”. It has also called
upon “Israel, as the occupying Power, to abide scrupulously” by the Fourth
Geneva Convention and:
“to rescind its previous measures and to desist from
taking any action which would result in changing the legal status and
geographical nature and materially affecting the demographic composition of the
Arab territories occupied since 1967, including Jerusalem and, in particular,
not to transfer parts of its own civilian population into the occupied Arab
territories” (resolution 446 (1979) of 22 March 1979).
The Council reaffirmed its position in
resolutions 452 (1979) of 20 July 1979 and 465 (1980)
of 1 March 1980. Indeed, in the latter case it described
“Israel’s policy and practices of settling parts of its population and new
immigrants in [the occupied] territories” as a “flagrant violation” of the
Fourth Geneva Convention.
The Court concludes that the Israeli settlements in the Occupied Palestinian
Territory (including East Jerusalem) have been established in breach of
international law.
121. Whilst the
Court notes the assurance given by Israel that the construction of the wall
does not amount to annexation and that the wall is of a temporary nature (see
paragraph 116 above), it nevertheless cannot remain indifferent to certain
fears expressed to it that the route of the wall will prejudge the future
frontier between Israel and Palestine, and the fear that Israel may integrate
the settlements and their means of access. The Court considers that the
construction of the wall and its associated régime
create a “fait accompli” on the ground that could well become permanent, in
which case, and notwithstanding the formal characterization of the wall by
Israel, it would be tantamount to de facto annexation.
122. The Court
recalls moreover that, according to the report of the Secretary‑General,
the planned route would incorporate in the area between the Green Line and the
wall more than 16 per cent of the territory of the West Bank. Around
80 per cent of the settlers living in the Occupied Palestinian Territory,
that is 320,000 individuals, would reside in that area, as well as
237,000 Palestinians. Moreover, as a result of the construction of
the wall, around 160,000 other Palestinians would reside in almost completely
encircled communities (see paragraphs 84, 85 and 119 above).
In other terms, the route chosen for the wall gives expression in loco
to the illegal measures taken by Israel with regard to Jerusalem and the
settlements, as deplored by the Security Council (see paragraphs 75 and
120 above). There is also a risk of further alterations to the
demographic composition of the Occupied Palestinian Territory resulting from
the construction of the wall inasmuch as it is contributing, as will be further
explained in paragraph 133 below, to the departure of Palestinian
populations from certain areas. That construction, along with measures
taken previously, thus severely impedes the exercise by the Palestinian people
of its right to self‑determination, and is therefore a breach of Israel’s
obligation to respect that right.
*
123. The
construction of the wall also raises a number of issues in relation to the
relevant provisions of international humanitarian law and of human rights
instruments.
124. With regard
to the Hague Regulations of 1907, the Court would recall that these deal, in
Section II, with hostilities and in particular with “means of injuring the
enemy, sieges, and bombardments”. Section III deals with military authority in occupied
territories. Only Section III is currently applicable in the
West Bank and Article 23 (g) of the Regulations, in
Section II, is thus not pertinent.
Section III of the Hague
Regulations includes Articles 43, 46 and 52, which are applicable in the
Occupied Palestinian Territory. Article 43 imposes a duty on the
occupant to “take all measures within his power to restore, and, as far as
possible, to insure public order and life, respecting the laws in force in the
country”. Article 46 adds that private
property must be “respected” and that it cannot “be confiscated”. Lastly, Article 52 authorizes, within certain
limits, requisitions in kind and services for the needs of the army of
occupation.
125. A distinction
is also made in the Fourth Geneva Convention between provisions applying during
military operations leading to occupation and those that remain applicable
throughout the entire period of occupation. It thus states in
Article 6:
“The present Convention shall apply from the outset of any conflict or
occupation mentioned in Article 2.
In the territory of Parties to the conflict, the application of the present
Convention shall cease on the general close of military operations.
In the case of occupied territory, the application of the present Convention
shall cease one year after the general close of military operations; however, the Occupying Power shall be bound, for the
duration of the occupation, to the extent that such Power exercises the
functions of government in such territory, by the provisions of the following
Articles of the present Convention: 1 to 12, 27, 29 to 34, 47, 49, 51,
52, 53, 59, 61 to 77, 143.
Protected persons whose release, repatriation or re‑establishment may
take place after such dates shall meanwhile continue to benefit by the present
Convention.”
Since the military operations leading to the occupation of the West Bank
in 1967 ended a long time ago, only those Articles of the Fourth Geneva
Convention referred to in Article 6, paragraph 3, remain applicable
in that occupied territory.
126. These
provisions include Articles 47, 49, 52, 53 and 59 of the Fourth Geneva
Convention.
According to Article 47:
“Protected persons who are in occupied territory shall not be deprived, in any
case or in any manner whatsoever, of the benefits of the present Convention by
any change introduced, as the result of the occupation of a territory, into the
institutions or government of the said territory, nor by any agreement
concluded between the authorities of the occupied territories and the Occupying
Power, nor by any annexation by the latter of the whole or part of the occupied
territory.”
Article 49 reads as follows:
“Individual or mass forcible
transfers, as well as deportations of protected persons from occupied territory
to the territory of the Occupying Power or to that of any other country,
occupied or not, are prohibited, regardless of their motive.
Nevertheless, the Occupying Power may undertake total or partial evacuation of
a given area if the security of the population or imperative military reasons
so demand. Such evacuations may not involve the displacement of protected
persons outside the bounds of the occupied territory except when for material
reasons it is impossible to avoid such displacement. Persons thus
evacuated shall be transferred back to their homes as soon as hostilities in
the area in question have ceased.
The Occupying Power undertaking such transfers or evacuations shall ensure, to
the greatest practicable extent, that proper accommodation is provided to
receive the protected persons, that the removals are
effected in satisfactory conditions of hygiene, health, safety and nutrition,
and that members of the same family are not separated.
The Protecting Power shall be informed of any transfers and evacuations as soon
as they have taken place.
The Occupying Power shall not detain protected persons in an area particularly
exposed to the dangers of war unless the security of the population or
imperative military reasons so demand.
The Occupying Power shall not deport or transfer parts of its own civilian
population into the territory it occupies.”
According to Article 52:
“No contract, agreement or regulation shall impair the right of any worker,
whether voluntary or not and wherever he may be, to apply to the
representatives of the Protecting Power in order to request the said Power’s
intervention.
All measures aiming at creating unemployment or at restricting the
opportunities offered to workers in an occupied territory, in order to induce
them to work for the Occupying Power, are prohibited.”
Article 53 provides that:
“Any destruction by the Occupying Power of real or personal property belonging
individually or collectively to private persons, or to the State, or to other
public authorities, or to social or cooperative organizations, is prohibited,
except where such destruction is rendered absolutely necessary by military
operations.”
Lastly, according to Article 59:
“If the whole or part of the
population of an occupied territory is inadequately supplied, the Occupying
Power shall agree to relief schemes on behalf of the said population, and shall
facilitate them by all the means at its disposal.
Such schemes, which may be undertaken either by States or by impartial
humanitarian organizations such as the International Committee of the Red
Cross, shall consist, in particular, of the provision of consignments of
foodstuffs, medical supplies and clothing.
All Contracting Parties shall permit the free passage of these consignments and
shall guarantee their protection.
A Power granting free passage to consignments on their way to territory
occupied by an adverse Party to the conflict shall, however, have the right to
search the consignments, to regulate their passage according to prescribed
times and routes, and to be reasonably satisfied through the Protecting Power
that these consignments are to be used for the relief of the needy population
and are not to be used for the benefit of the Occupying Power.”
127. The
International Covenant on Civil and Political Rights also contains several
relevant provisions. Before further examining these, the Court will
observe that Article 4 of the Covenant allows for derogation to be made,
under various conditions, to certain provisions of that instrument.
Israel made use of its right of derogation under this Article by addressing the
following communication to the Secretary‑General of the United Nations on
3 October 1991:
“Since its establishment, the State of Israel has been the victim of continuous
threats and attacks on its very existence as well as on the life and property
of its citizens.
These have taken the form of threats of war, of actual armed attacks, and
campaigns of terrorism resulting in the murder of and injury to human beings.
In view of the above, the State of Emergency which was proclaimed in
May 1948 has remained in force ever since. This situation
constitutes a public emergency within the meaning of article 4 (1) of
the Covenant.
The Government of Israel has therefore found it necessary, in accordance with
the said article 4, to take measures to the extent strictly required by
the exigencies of the situation, for the defence of the State and for the
protection of life and property, including the exercise of powers of arrest and
detention.
In so far as any of these measures are inconsistent with article 9 of the
Covenant, Israel thereby derogates from its obligations under that provision.”
The Court notes that the derogation so notified concerns only Article 9 of
the International Covenant on Civil and Political Rights, which deals with the
right to liberty and security of person and lays down the rules applicable in
cases of arrest or detention. The other Articles of the Covenant
therefore remain applicable not only on Israeli territory, but also on the
Occupied Palestinian Territory.
128. Among these mention must
be made of Article 17, paragraph 1 of which reads as follows: “No
one shall be subjected to arbitrary or unlawful interference with his privacy,
family, home or correspondence, nor to unlawful
attacks on his honour and reputation.”
Mention must also be made of Article 12, paragraph 1, which
provides: “Everyone lawfully within the territory of a State shall,
within that territory, have the right to liberty of movement and freedom to
choose his residence.”
129. In addition
to the general guarantees of freedom of movement under Article 12 of the
International Covenant on Civil and Political Rights, account must also be
taken of specific guarantees of access to the Christian, Jewish and Islamic
Holy Places. The status of the Christian Holy Places in the Ottoman
Empire dates far back in time, the latest provisions relating thereto having
been incorporated into Article 62 of the Treaty of Berlin of
13 July 1878. The Mandate for Palestine given to the British
Government on 24 July 1922 included an Article 13, under which:
“All responsibility in connection with the Holy Places and religious buildings
or sites in Palestine, including that of preserving existing rights and of
securing free access to the Holy Places, religious buildings and sites and the
free exercise of worship, while ensuring the requirements of public order and
decorum, is assumed by the Mandatory . . .”
Article 13 further stated:
“nothing in this mandate shall be construed as conferring . . .
authority to interfere with the fabric or the management of purely Moslem
sacred shrines, the immunities of which are guaranteed”.
In the aftermath of the Second World War, the General Assembly, in adopting
resolution 181 (II) on the future government of Palestine, devoted an
entire chapter of the Plan of Partition to the Holy Places, religious buildings
and sites. Article 2 of this Chapter provided, in so far as the Holy
Places were concerned:
“the liberty of access, visit and transit shall be
guaranteed, in conformity with existing rights, to all residents and citizens
[of the Arab State, of the Jewish State] and of the City of Jerusalem, as well
as to aliens, without distinction as to nationality, subject to requirements of
national security, public order and decorum”.
Subsequently, in the aftermath of the armed
conflict of 1948, the 1949 General Armistice Agreement between Jordan and
Israel provided in Article VIII for the establishment of a special
committee for “the formulation of agreed plans and arrangements for such
matters as either Party may submit to it” for the purpose of enlarging the scope
of the Agreement and of effecting improvement in its application. Such
matters, on which an agreement of principle had already been concluded,
included “free access to the Holy Places”.
This commitment concerned mainly the Holy Places located to the east of the
Green Line. However, some Holy Places were located west of that
Line. This was the case of the Room of the Last Supper and the Tomb of
David, on Mount Zion. In signing the General Armistice Agreement, Israel
thus undertook, as did Jordan, to guarantee freedom of access to the Holy
Places. The Court
considers that this undertaking by Israel has
remained valid for the Holy Places which came under its control in 1967.
This undertaking has further been confirmed by Article 9, paragraph 1,
of the 1994 Peace Treaty between Israel and Jordan, by virtue of which, in more
general terms, “Each party will provide freedom of access to places of
religious and historical significance.”
130. As regards
the International Covenant on Economic, Social and Cultural Rights, that
instrument includes a number of relevant provisions, namely: the right to
work (Articles 6 and 7); protection and assistance accorded to the
family and to children and young persons (Article 10); the right to
an adequate standard of living, including adequate food, clothing and housing,
and the right “to be free from hunger” (Art. 11); the right to
health (Art. 12); the right to education (Arts. 13 and 14).
131. Lastly, the
United Nations Convention on the Rights of the Child of
20 November 1989 includes similar provisions in Articles 16, 24,
27 and 28.
*
132. From the information submitted to the Court, particularly the report of
the Secretary‑General, it appears that the construction of the wall has
led to the destruction or requisition of properties under conditions which
contravene the requirements of Articles 46 and 52 of the Hague Regulations
of 1907 and of Article 53 of the Fourth Geneva Convention.
133. That construction,
the establishment of a closed area between the Green Line and the wall itself
and the creation of enclaves have moreover imposed substantial restrictions on
the freedom of movement of the inhabitants of the Occupied Palestinian
Territory (with the exception of Israeli citizens and those assimilated
thereto). Such restrictions are most marked in urban areas, such as the Qalqiliya enclave or the City of Jerusalem and its
suburbs. They are aggravated by the fact that the access gates are few in
number in certain sectors and opening hours appear to be restricted and
unpredictably applied. For example, according to the Special Rapporteur of the Commission on Human Rights on the
situation of human rights in the Palestinian territories occupied by Israel
since 1967, “Qalqiliya, a city with a population of
40,000, is completely surrounded by the Wall and residents can only enter and
leave through a single military checkpoint open from 7 a.m. to
7 p.m.” (Report of the Special Rapporteur
of the Commission on Human Rights, John Dugard, on
the situation of human rights in the Palestinian territories occupied by Israel
since 1967, submitted in accordance with Commission
resolution 1993/2 A and entitled “Question of the Violation of Human
Rights in the Occupied Arab Territories, including Palestine”, E/CN.4/2004/6,
8 September 2003, para. 9.)
There have also been serious repercussions for agricultural production, as is
attested by a number of sources. According to the Special Committee to
Investigate Israeli Practices Affecting the Human Rights of the Palestinian
People and Other Arabs of the Occupied Territories
“an estimated 100,000 dunums
[approximately 10,000 hectares] of the West Bank’s most fertile
agricultural land, confiscated by the Israeli Occupation Forces, have been
destroyed during the first phase of the wall construction, which involves the
disappearance of vast amounts of property, notably private agricultural land
and olive trees, wells, citrus grows and hothouses upon which tens of thousands
of Palestinians rely for their survival” (Report of the Special Committee to
Investigate Israeli Practices Affecting the Human Rights of the Palestinian
People and Other Arabs of the Occupied Territories, A/58/311,
22 August 2003, para. 26).
Further, the Special Rapporteur
on the situation of human rights in the Palestinian territories occupied by
Israel since 1967 states that “Much of the Palestinian land on the Israeli side
of the Wall consists of fertile agricultural land and some of the most important
water wells in the region” and adds that “Many fruit and olive trees had been
destroyed in the course of building the barrier.” (E/CN.4/2004/6,
8 September 2003, para. 9.)
The Special Rapporteur on the Right to Food of the
United Nations Commission on Human Rights states that construction of the wall
“cuts off Palestinians from their agricultural lands, wells and means of
subsistence” (Report by the Special Rapporteur of the
United Nations Commission on Human Rights, Jean Ziegler, “The Right to Food”,
Addendum, Mission to the Occupied Palestinian Territories,
E/CN.4/2004/10/Add.2, 31 October 2003, para. 49).
In a recent survey conducted by the World Food Programme, it is stated that the
situation has aggravated food insecurity in the region, which reportedly
numbers 25,000 new beneficiaries of food aid (report of the Secretary‑General,
para. 25).
It has further led to increasing difficulties for the population concerned
regarding access to health services, educational establishments and primary
sources of water. This is also attested by a number of different
information sources. Thus the report of the Secretary‑General
states generally that “According to the Palestinian Central Bureau of
Statistics, so far the Barrier has separated 30 localities from health
services, 22 from schools, 8 from primary water sources and 3 from electricity
networks.” (Report of the Secretary‑General, para. 23.) The Special Rapporteur of the United Nations Commission on Human Rights
on the situation of human rights in the Palestinian territories occupied by
Israel since 1967 states that “Palestinians between the Wall and Green Line
will effectively be cut off from their land and workplaces, schools, health
clinics and other social services.” (E/CN.4/2004/6,
8 September 2003, para. 9.)
In relation specifically to water resources, the Special Rapporteur
on the Right to Food of the United Nations Commission on Human Rights observes
that “By constructing the fence Israel will also effectively annex most of the western
aquifer system (which provides 51 per cent of the West Bank’s water
resources).” (E/CN.4/2004/10/Add.2,
31 October 2003, para. 51.)
Similarly, in regard to access to health services, it has been stated that, as
a result of the enclosure of Qalqiliya, a United
Nations hospital in that town has recorded a 40 per cent decrease in
its caseload (report of the Secretary‑General, para. 24).
At Qalqiliya, according to reports furnished to the
United Nations, some 600 shops or businesses have shut down, and 6,000 to
8,000 people have already left the region (E/CN.4/2004/6,
8 September 2003, para. 10; E/CN.4/2004/10/Add.2, 31 October 2003, para. 51). The Special Rapporteur
on the Right to Food of the United Nations Commission on Human Rights has also
observed that “With the fence/wall cutting communities off from their land and
water without other
means of subsistence, many of the Palestinians
living in these areas will be forced to leave.” (E/CN.4/2004/10/Add.2,
31 October 2003, para. 51.)
In this respect also the construction of the wall would effectively deprive a
significant number of Palestinians of the “freedom to choose [their] residence”. In addition, however, in the view of the Court,
since a significant number of Palestinians have already been compelled by the
construction of the wall and its associated régime to
depart from certain areas, a process that will continue as more of the wall is
built, that construction, coupled with the establishment of the Israeli
settlements mentioned in paragraph 120 above, is tending to alter the
demographic composition of the Occupied Palestinian Territory.
134. To sum up,
the Court is of the opinion that the construction of the wall and its
associated régime impede the liberty of movement of
the inhabitants of the Occupied Palestinian Territory (with the exception of
Israeli citizens and those assimilated thereto) as guaranteed under
Article 12, paragraph 1, of the International Covenant on Civil and
Political Rights. They also impede the exercise by the persons concerned
of the right to work, to health, to education and to an adequate standard of
living as proclaimed in the International Covenant on Economic, Social and
Cultural Rights and in the United Nations Convention on the Rights of the
Child. Lastly, the construction of the wall and its associated régime, by contributing to the demographic changes referred
to in paragraphs 122 and 133 above, contravene
Article 49, paragraph 6, of the Fourth Geneva Convention and the
Security Council resolutions cited in paragraph 120 above.
135. The Court
would observe, however, that the applicable international humanitarian law
contains provisions enabling account to be taken of military exigencies in
certain circumstances.
Neither Article 46 of the Hague Regulations of 1907 nor Article 47 of
the Fourth Geneva Convention contain any qualifying
provision of this type. With regard to forcible transfers of population
and deportations, which are prohibited under Article 49, paragraph 1,
of the Convention, paragraph 2 of that Article provides for an exception
in those cases in which “the security of the population or imperative military
reasons so demand”. This exception however does not apply to
paragraph 6 of that Article, which prohibits the occupying Power from
deporting or transferring parts of its own civilian population into the
territories it occupies. As to Article 53 concerning the destruction
of personal property, it provides for an exception “where such destruction is rendered
absolutely necessary by military operations”.
The Court considers that the military exigencies contemplated by these texts
may be invoked in occupied territories even after the general close of the
military operations that led to their occupation. However, on the
material before it, the Court is not convinced that the destructions carried
out contrary to the prohibition in Article 53 of the Fourth Geneva
Convention were rendered absolutely necessary by military operations.
136. The Court
would further observe that some human rights conventions, and in particular the
International Covenant on Civil and Political Rights, contain provisions which
States parties may invoke in order to derogate, under various conditions, from
certain of their conventional obligations. In this respect, the Court
would however recall that the communication notified by
Israel to the Secretary‑General of the United Nations under
Article 4 of the International Covenant on Civil and Political Rights concerns
only Article 9 of the Covenant, relating to the right to freedom and
security of person (see paragraph 127 above); Israel is accordingly bound
to respect all the other provisions of that instrument.
The Court would note, moreover, that certain provisions of human rights
conventions contain clauses qualifying the rights covered by those
provisions. There is no clause of this kind in Article 17 of the
International Covenant on Civil and Political Rights. On the other hand, Article 12,
paragraph 3, of that instrument provides that restrictions on liberty of
movement as guaranteed under that Article “shall not be subject to any
restrictions except those which are provided by law, are necessary to protect
national security, public order (ordre public),
public health or morals or the rights and freedoms of others, and are
consistent with the other rights recognized in the present Covenant”. As
for the International Covenant on Economic, Social and Cultural Rights, Article
4 thereof contains a general provision as follows:
“The States Parties to the present Covenant recognize that, in the enjoyment of
those rights provided by the State in conformity with the present Covenant, the
State may subject such rights only to such limitations as are determined by law
only in so far as this may be compatible with the nature of these rights and
solely for the purpose of promoting the general welfare in a democratic
society.”
The Court would observe that the restrictions provided for under Article 12,
paragraph 3, of the International Covenant on Civil and Political Rights
are, by the very terms of that provision, exceptions to the right of freedom of
movement contained in paragraph 1. In addition, it is not sufficient
that such restrictions be directed to the ends authorized;
they must also be necessary for the attainment of those ends. As
the Human Rights Committee put it, they “must conform to the principle of
proportionality” and “must be the least intrusive instrument amongst those which
might achieve the desired result” (CCPR/C/21/Rev.1/Add.9, General Comment
No. 27, para. 14). On the basis of
the information available to it, the Court finds that these conditions are not
met in the present instance.
The Court would further observe that the restrictions on the enjoyment by the
Palestinians living in the territory occupied by Israel of their economic,
social and cultural rights, resulting from Israel’s construction of the wall,
fail to meet a condition laid down by Article 4 of the International
Covenant on Economic, Social and Cultural Rights, that is to say that their
implementation must be “solely for the purpose of promoting the general welfare
in a democratic society”.
137. To sum up,
the Court, from the material available to it, is not convinced that the
specific course Israel has chosen for the wall was necessary to attain its
security objectives. The wall, along the route chosen, and its associated
régime gravely infringe a number of rights of
Palestinians residing in the territory occupied by Israel, and the
infringements resulting from that route cannot be justified by military
exigencies or by the requirements of national security or public order.
The construction of such a wall accordingly constitutes breaches by Israel of various of its obligations under the applicable
international humanitarian law and human rights instruments.
*
138. The Court has thus
concluded that the construction of the wall constitutes action not in
conformity with various international legal obligations incumbent upon
Israel. However, Annex I to the report of the Secretary‑General
states that, according to Israel: “the construction of the Barrier is
consistent with Article 51 of the Charter of the United Nations, its inherent
right to self‑defence and Security Council
resolutions 1368 (2001) and 1373 (2001)”. More
specifically, Israel’s Permanent Representative to the United Nations asserted
in the General Assembly on 20 October 2003 that “the fence is a measure
wholly consistent with the right of States to self‑defence enshrined in
Article 51 of the Charter”; the Security Council resolutions referred to,
he continued, “have clearly recognized the right of States to use force in self‑defence
against terrorist attacks”, and therefore surely recognize the right to use non‑forcible
measures to that end (A/ES‑10/PV.21, p. 6).
139. Under the terms of Article 51 of the Charter of the
United Nations:
“Nothing in the present Charter shall impair the inherent right of individual
or collective self‑defence if an armed attack occurs against a Member of
the United Nations, until the Security Council has taken measures necessary to
maintain international peace and security.”
Article 51 of the Charter thus recognizes the existence of an inherent
right of self‑defence in the case of armed attack by one State against
another State. However, Israel does not claim that the attacks against it
are imputable to a foreign State.
The Court also notes that Israel exercises control in the Occupied Palestinian
Territory and that, as Israel itself states, the threat which it regards as
justifying the construction of the wall originates within, and not outside,
that territory. The situation is thus different from that contemplated by
Security Council resolutions 1368 (2001) and 1373 (2001), and
therefore Israel could not in any event invoke those resolutions in support of
its claim to be exercising a right of self‑defence.
Consequently, the Court concludes that Article 51 of the Charter has no
relevance in this case.
140. The Court
has, however, considered whether Israel could rely on a state of necessity
which would preclude the wrongfulness of the construction of the wall. In
this regard the Court is bound to note that some of the conventions at issue in
the present instance include qualifying clauses of the rights guaranteed or
provisions for derogation (see paragraphs 135 and 136 above). Since
those treaties already address considerations of this kind within their own
provisions, it might be asked whether a state of necessity as recognized in
customary international law could be invoked with regard to those treaties as a
ground for precluding the wrongfulness of the measures or decisions being
challenged. However, the Court will not need to consider that
question. As the Court observed in the case concerning the Gabčíkovo‑Nagymaros Project (Hungary/Slovakia), “the state of necessity is a ground
recognized by customary international law” that “can only be accepted on an
exceptional basis”; it “can only be invoked under certain strictly defined
conditions which must be cumulatively satisfied; and the State concerned is not
the sole judge of whether those conditions have been met” (I.C.J. Reports
1997, p. 40, para. 51). One of
those conditions
was stated by the Court in terms used by the International Law
Commission, in a text which in its present form requires that the act being
challenged be “the only way for the State to safeguard an essential interest
against a grave and imminent peril” (Article 25 of the International Law
Commission’s Articles on Responsibility of States for Internationally Wrongful
Acts; see also former Article 33 of the Draft Articles on the
International Responsibility of States, with slightly different wording in the
English text). In the light of the material before it, the Court is not
convinced that the construction of the wall along the route chosen was the only
means to safeguard the interests of Israel against the peril which it has
invoked as justification for that construction.
141. The fact
remains that Israel has to face numerous indiscriminate and deadly acts of
violence against its civilian population. It has the right, and indeed
the duty, to respond in order to protect the life of its citizens. The
measures taken are bound nonetheless to remain in conformity with applicable
international law.
142. In
conclusion, the Court considers that Israel cannot rely on a right of self‑defence
or on a state of necessity in order to preclude the wrongfulness of the
construction of the wall resulting from the considerations mentioned in
paragraphs 122 and 137 above. The Court accordingly finds that the
construction of the wall, and its associated régime,
are contrary to international law.
*
* *
143. The Court
having concluded that, by the construction of the wall in the Occupied
Palestinian Territory, including in and around East Jerusalem, and by adopting
its associated régime, Israel has violated various
international obligations incumbent upon it (see paragraphs 114‑137
above), it must now, in order to reply to the question posed by the General
Assembly, examine the consequences of those violations.
* *
144. In their
written and oral observations, many participants in the proceedings before the
Court contended that Israel’s action in illegally constructing this wall has
legal consequences not only for Israel itself, but also for other States and
for the United Nations; in its Written
Statement, Israel, for its part, presented no arguments regarding the possible
legal consequences of the construction of the wall.
145. As regards the legal
consequences for Israel, it was contended that Israel has, first, a legal
obligation to bring the illegal situation to an end by ceasing forthwith the
construction of the wall in the Occupied Palestinian Territory, and to give
appropriate assurances and guarantees of non‑repetition.
It was argued that, secondly, Israel is under a legal obligation to make
reparation for the damage arising from its unlawful conduct. It was
submitted that such reparation should first of all take the form of
restitution, namely demolition of those portions of the wall constructed in the
Occupied Palestinian Territory and annulment of the legal acts associated with
its construction and the restoration of property requisitioned or expropriated
for that purpose; reparation should also include
appropriate compensation for individuals whose homes or agricultural holdings
have been destroyed.
It was further contended that Israel is under a continuing duty to comply with
all of the international obligations violated by it as a result of the
construction of the wall in the Occupied Palestinian Territory and of the
associated régime. It was also argued that,
under the terms of the Fourth Geneva Convention, Israel is under an obligation
to search for and bring before its courts persons alleged to have committed, or
to have ordered to be committed, grave breaches of international humanitarian
law flowing from the planning, construction and use of the wall.
146. As regards
the legal consequences for States other than Israel, it was contended before
the Court that all States are under an obligation not to recognize the illegal
situation arising from the construction of the wall, not to render aid or
assistance in maintaining that situation and to co‑operate with a view to
putting an end to the alleged violations and to ensuring that reparation will
be made therefor.
Certain participants in the proceedings further contended that the States
parties to the Fourth Geneva Convention are obliged to take measures to ensure
compliance with the Convention and that, inasmuch as the construction and
maintenance of the wall in the Occupied Palestinian Territory constitutes grave
breaches of that Convention, the States parties to that Convention are under an
obligation to prosecute or extradite the authors of such breaches. It was
further observed that “the United Nations Security Council should consider
flagrant and systematic violation of international law norm[s] and principles
by Israel, particularly . . .
international humanitarian law, and take all necessary measures to put an end
[to] these violations”, and that the Security Council and the General Assembly
must take due account of the advisory opinion to be given by the Court.
* *
147. Since the
Court has concluded that the construction of the wall in the Occupied
Palestinian Territory, including in and around East Jerusalem, and its
associated régime, are contrary to various
of Israel’s international obligations, it follows that the responsibility of
that State is engaged under international law.
148. The Court will now
examine the legal consequences resulting from the violations of international
law by Israel by distinguishing between, on the one hand, those arising for
Israel and, on the other, those arising for other States and, where
appropriate, for the United Nations. The Court will begin by examining
the legal consequences of those violations for Israel.
*
149. The Court
notes that Israel is first obliged to comply with the international obligations
it has breached by the construction of the wall in the Occupied Palestinian
Territory (see paragraphs 114‑137 above). Consequently, Israel
is bound to comply with its obligation to respect the right of the Palestinian
people to self‑determination and its obligations under international
humanitarian law and international human rights law. Furthermore, it must
ensure freedom of access to the Holy Places that came under its control
following the 1967 War (see paragraph 129 above).
150. The Court
observes that Israel also has an obligation to put an end to the violation of
its international obligations flowing from the construction of the wall in the
Occupied Palestinian Territory. The obligation of a State responsible for
an internationally wrongful act to put an end to that act is well established
in general international law, and the Court has on a number of occasions
confirmed the existence of that obligation (Military and Paramilitary Activities
in and against Nicaragua (Nicaragua v. United States of America),
Merits, Judgment, I.C.J. Reports 1986, p. 149; United States
Diplomatic and Consular Staff in Tehran, Judgment, I.C.J. Reports 1980,
p. 44, para. 95; Haya
de la Torre, Judgment, I.C.J. Reports 1951,
p. 82).
151. Israel accordingly has
the obligation to cease forthwith the works of construction of the wall being
built by it in the Occupied Palestinian Territory, including in and around
East Jerusalem. Moreover, in view of the Court’s finding (see
paragraph 143 above) that Israel’s violations of its international
obligations stem from the construction of the wall and from its associated régime, cessation of those violations entails the
dismantling forthwith of those parts of that structure situated within the
Occupied Palestinian Territory, including in and around East Jerusalem.
All legislative and regulatory acts adopted with a view to its construction,
and to the establishment of its associated régime,
must forthwith be repealed or rendered ineffective, except in so far as such
acts, by providing for compensation or other forms of reparation for the
Palestinian population, may continue to be relevant for compliance by Israel
with the obligations referred to in paragraph 153 below.
152. Moreover,
given that the construction of the wall in the Occupied Palestinian Territory
has, inter alia, entailed the requisition and
destruction of homes, businesses and agricultural holdings, the Court finds
further that Israel has the obligation to make reparation for the damage caused
to all the natural or legal persons concerned. The Court would recall
that the essential forms of reparation in customary law were laid down by the
Permanent Court of International Justice in the following terms:
“The essential principle
contained in the actual notion of an illegal act - a principle which seems to be established by
international practice and in particular by the decisions of arbitral
tribunals - is that reparation
must, as far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability,
have existed if that act had not been committed. Restitution in kind, or,
if this is not possible, payment of a sum corresponding to the value which a
restitution in kind would bear; the award, if
need be, of damages for loss sustained which would not be covered by
restitution in kind or payment in place of it - such are the principles which should serve to
determine the amount of compensation due for an act contrary to international
law.” (Factory at Chorzów, Merits, Judgment
No. 13, 1928, P.C.I.J., Series A, No. 17, p. 47.)
153. Israel is
accordingly under an obligation to return the land, orchards, olive groves and
other immovable property seized from any natural or legal person for purposes
of construction of the wall in the Occupied Palestinian Territory. In the
event that such restitution should prove to be materially impossible, Israel
has an obligation to compensate the persons in question for the damage
suffered. The Court considers that Israel also has an obligation to
compensate, in accordance with the applicable rules of international law, all natural
or legal persons having suffered any form of
material damage as a result of the wall’s construction.
*
154. The Court
will now consider the legal consequences of the internationally wrongful acts
flowing from Israel’s construction of the wall as regards other States.
155. The Court
would observe that the obligations violated by Israel include certain
obligations erga omnes.
As the Court indicated in the Barcelona Traction case, such obligations
are by their very nature “the concern of all States” and, “In view of the
importance of the rights involved, all States can be held to have a legal
interest in their protection.” (Barcelona Traction, Light and Power
Company, Limited, Second Phase, Judgment, I.C.J. Reports 1970, p. 32, para. 33.) The obligations erga
omnes violated by Israel are the obligation to
respect the right of the Palestinian people to self‑determination, and
certain of its obligations under international humanitarian law.
156. As regards
the first of these, the Court has already observed (paragraph 88 above)
that in the East Timor case, it described as “irreproachable” the
assertion that “the right of peoples to self‑determination, as it evolved
from the Charter and from United Nations practice, has an erga
omnes character” (I.C.J. Reports 1995,
p. 102, para. 29). The Court would
also recall that under the terms of General Assembly resolution
2625 (XXV), already mentioned above (see paragraph 88),
“Every State has the duty to
promote, through joint and separate action, realization of the principle of
equal rights and self‑determination of peoples, in accordance with the
provisions of the Charter, and to render assistance to the United Nations in
carrying out the responsibilities entrusted to it by the Charter regarding the
implementation of the principle . . .”
157. With regard
to international humanitarian law, the Court recalls that in its Advisory
Opinion on the Legality of the Threat or Use of Nuclear Weapons, it
stated that “a great many rules of humanitarian law applicable in armed
conflict are so fundamental to the respect of the human person and ‘elementary
considerations of humanity’ . . .”, that they are “to be
observed by all States whether or not they have ratified the conventions that
contain them, because they constitute intransgressible
principles of international customary law” (I.C.J. Reports 1996 (I),
p. 257, para. 79). In the Court’s
view, these rules incorporate obligations which are essentially of an erga omnes character.
158. The Court
would also emphasize that Article 1 of the Fourth Geneva Convention, a
provision common to the four Geneva Conventions, provides that “The High
Contracting Parties undertake to respect and to ensure respect for the present
Convention in all circumstances.” It follows from that provision that
every State party to that Convention, whether or not it is a party to a
specific conflict, is under an obligation to ensure that the requirements of
the instruments in question are complied with.
159. Given the
character and the importance of the rights and obligations involved, the Court
is of the view that all States are under an obligation
not to recognize the illegal situation resulting from the construction
of the wall in the Occupied Palestinian Territory, including in and around East
Jerusalem. They are also under an obligation not to render aid or
assistance in maintaining the situation created by such construction. It
is also for all States, while respecting the United Nations Charter and
international law, to see to it that any impediment, resulting from the
construction of the wall, to the exercise by the Palestinian people of its
right to self‑determination is brought to an end. In addition, all
the States parties to the Geneva Convention relative to the Protection of
Civilian Persons in Time of War of 12 August 1949 are under an
obligation, while respecting the United Nations Charter and international law,
to ensure compliance by Israel with international humanitarian law as embodied
in that Convention.
160. Finally,
the Court is of the view that the United Nations, and especially the General
Assembly and the Security Council, should consider what further action is
required to bring to an end the illegal situation resulting from the
construction of the wall and the associated régime,
taking due account of the present Advisory Opinion.
*
* *
161. The Court, being
concerned to lend its support to the purposes and principles laid down in the
United Nations Charter, in particular the maintenance of international peace
and security and the peaceful settlement of disputes, would emphasize the
urgent necessity for the United Nations as a whole to redouble its efforts to
bring the Israeli‑Palestinian conflict, which continues to pose a threat
to international peace and security, to a speedy conclusion, thereby
establishing a just and lasting peace in the region.
162. The Court
has reached the conclusion that the construction of the wall by Israel in the
Occupied Palestinian Territory is contrary to international law and has stated
the legal consequences that are to be drawn from that illegality. The
Court considers itself bound to add that this construction must be placed in a more
general context. Since 1947, the year when General Assembly
resolution 181 (II) was adopted and the Mandate for Palestine was
terminated, there has been a succession of armed conflicts, acts of
indiscriminate violence and repressive measures on the former mandated
territory. The Court would emphasize that both Israel and Palestine are
under an obligation scrupulously to observe the rules of international
humanitarian law, one of the paramount purposes of which is to protect civilian
life. Illegal actions and unilateral decisions have been taken on all
sides, whereas, in the Court’s view, this tragic situation can be brought to an
end only through implementation in good faith of all relevant Security Council
resolutions, in particular resolutions 242 (1967) and
338 (1973). The “Roadmap” approved by Security Council
resolution 1515 (2003) represents the most recent of efforts to
initiate negotiations to this end. The Court considers that it has a duty
to draw the attention of the General Assembly, to which the present Opinion is
addressed, to the need for these efforts to be encouraged with a view to
achieving as soon as possible, on the basis of international law, a negotiated
solution to the outstanding problems and the establishment of a Palestinian
State, existing side by side with Israel and its other neighbours, with peace
and security for all in the region.
*
* *
163. For these reasons,
The Court,
(1) Unanimously,
Finds that it has jurisdiction to give the advisory opinion requested;
(2) By fourteen votes to one,
Decides to comply with the request for an advisory opinion;
in favour: President Shi; Vice‑President
Ranjeva; Judges Guillaume, Koroma, Vereshchetin, Higgins, Parra‑Aranguren, Kooijmans,
Rezek, Al‑Khasawneh, Elaraby, Owada, Simma, Tomka;
against: Judge Buergenthal;
(3) Replies in the following manner to the question
put by the General Assembly:
A. By fourteen votes to one,
The construction of the wall
being built by Israel, the occupying Power, in the Occupied Palestinian
Territory, including in and around East Jerusalem, and its associated régime, are contrary to international law;
in favour: President Shi; Vice‑President
Ranjeva; Judges Guillaume, Koroma, Vereshchetin, Higgins, Parra‑Aranguren, Kooijmans,
Rezek, Al‑Khasawneh, Elaraby, Owada, Simma, Tomka;
against: Judge Buergenthal;
B. By fourteen votes to one,
Israel is under an obligation to terminate its breaches of international law; it is under an obligation to cease forthwith the
works of construction of the wall being built in the Occupied Palestinian
Territory, including in and around East Jerusalem, to dismantle forthwith the
structure therein situated, and to repeal or render ineffective forthwith all
legislative and regulatory acts relating thereto, in accordance with
paragraph 151 of this Opinion;
in favour: President Shi; Vice‑President Ranjeva; Judges Guillaume, Koroma,
Vereshchetin, Higgins, Parra‑Aranguren,
Kooijmans, Rezek, Al‑Khasawneh, Elaraby, Owada, Simma, Tomka;
against: Judge Buergenthal;
C. By fourteen votes to one,
in favour: President Shi; Vice‑President Ranjeva; Judges Guillaume, Koroma,
Vereshchetin, Higgins, Parra‑Aranguren,
Kooijmans, Rezek, Al‑Khasawneh, Elaraby, Owada, Simma, Tomka;
against: Judge Buergenthal;
D. By thirteen votes to two,
All States are under an obligation not to recognize the illegal situation
resulting from the construction of the wall and not to render aid or assistance
in maintaining the situation created by such construction; all States
parties to the Fourth Geneva Convention relative to the Protection of
Civilian Persons in Time of War of
12 August 1949 have in addition the obligation, while respecting the
United Nations Charter and international law, to ensure compliance by Israel
with international humanitarian law as embodied in that Convention;
in favour: President Shi; Vice‑President Ranjeva; Judges Guillaume, Koroma,
Vereshchetin, Higgins, Parra‑Aranguren,
Rezek, Al‑Khasawneh, Elaraby, Owada, Simma, Tomka;
against: Judges Kooijmans, Buergenthal;
E. By fourteen votes to one,
The United Nations, and especially the General Assembly and the Security
Council, should consider what further action is required to bring to an end the
illegal situation resulting from the construction of the wall and the
associated régime, taking due account of the present
Advisory Opinion.
in favour: President Shi; Vice‑President Ranjeva; Judges Guillaume, Koroma,
Vereshchetin, Higgins, Parra‑Aranguren,
Kooijmans, Rezek, Al‑Khasawneh, Elaraby, Owada, Simma, Tomka;
against: Judge Buergenthal.
Done in French and in English, the French text being authoritative, at the
Peace Palace, The Hague, this ninth day of July, two thousand and four, in
two copies, one of which will be placed in the archives of the Court and the
other transmitted to the Secretary‑General of the United Nations.
(Signed) Shi Jiuyong,
President.
(Signed) Philippe
Couvreur,
Registrar.
Judges Koroma, Higgins, Kooijmans and
Al‑Khasawneh append
separate opinions to the Advisory Opinion of the Court; Judge Buergenthal appends a declaration to
the Advisory Opinion of the Court; Judges Elaraby and Owada
append separate opinions to the Advisory Opinion of the Court.
(Initialled) J.Y.S.
(Initialled) Ph.C